Colm McCarthy thinks that he has discovered an episode of "moral hazard" (though he does not use that phrase) in the last pre-nationalisation days of Anglo-Irish Bank. I am not sure that he's correct - but I do agree that it merits investigation.

The sad reality, it seems to me, is that Colm's observation

... after end-September 2008...there could have been no plausible expectation of profits to shelter

Even sadder, I strongly suspect that there are - even now - quite a few at such levels who are "in denial", at least to the extent of still clinging to the delusion that, without the external shock of Lehman Brothers' collapse and internal "talkers-down of the economy", a "soft landing" was in prospect.

It is all too plausible, I fear, that those who generate at least some of the allegedly misleading data about which NAMA claims to be irritated are the same people. They are not mendacious, as is constantly but, in my opinion, too glibly alleged. They are delusional.

Of course, such people should have been - firmly, and politely ! - shown the door long ago.

You may recall that my last report on this matter had the news that I had heard from an adjudicator, which might have been expected to herald further progress.

Indeed, I was soon telephoned by the adjudicator, who had the enviable opportunity to hear my passionate oral advocacy. Lucky girl ☺ !

Alas ! She was not long after replaced by another adjudicator and months of silence followed.

However, today* I received the new adjudicator's considered View of the case. This View is not a decision, unless the parties accept it. If either the insurer or the policyholder contest the View, the complaint goes before an Ombudsman for final decision.

The adjudicator's View does not so much disappoint as perplex me.

Briefly, while acknowledging that the insurer had handled the claim in an unsatisfactory manner, she suggested that the final result, in which it had grudgingly offered the full contractual value of my claim, was O.K., and that no further action would be appropriate.

It should not surprise you to learn that I am contesting this view.

*Not really today. Today (June 10 2010) is day 423. Apologies for resuming a bad habit

Go here to read the story of the claim so far

A day that was threatening for a long time - for years, to be truthful - finally arrived yesterday at a little before 8 p.m.: my father, Fergus J. O'Rourke, died, peacefully in his sleep, in his own bed, in his 87th year.

I may not be able to do so, but I hope to post more information here over the next 48 hours. If I do not, those interested and able to do so, may wish to keep an eye on Monday's editions of "The Irish Times" and "Irish Examiner".

For those who know nothing of what was indisputably a most distinguished life, this set of Google results will give a flavour. (Diverse though his enthusiasms were, the two references to fire-fighting in Chicago in those Google results are to another FJO'R). He was a medically qualified biological scientist, originally a myrmecologist, and that is what his readily accessible published work reflects. What is not reflected is the breadth of his other scholarly interests, some of which also issued in published work. Early in his life, he was quite the archaeologist, for example; Christian theology, palaeontology, modern art featured, too.

He had virtually no interest in politics, the Law or banking & finance. What that says about me and about him, I will leave for another day !

The European Arrest Warrant is a mechanism which enables a member state of the European Union to request extradition of a person named in such a warrant from any other member state. It is currently in the news because of a development in the investigation in France of the death, 13 years ago, in Ireland of a French film-producer, Sophie Toscan du Plantier.

There are some circumstances in which extradition can be refused. One example is, according to page 14 of a guide still being offered on the website of the Irish Department of Justice :

6. Where a prosecution is still being considered in Ireland against the person for an offence or a decision has been taken to bring proceedings or not to bring proceedings in Ireland for an offence forming part of the offence specified in the European Arrest Warrant (S. 42).

The wording of section 42 of the 2003 Act is as follows

42.—A person shall not be surrendered under this Act if—

(a) the Director of Public Prosecutions or the Attorney General is considering, but has not yet decided, whether to bring proceedings against the person for an offence,

(b) proceedings have been brought in the State against the person for an offence consisting of an act or omission that constitutes in whole or in part the offence specified in the European arrest warrant issued in respect of him or her, or

(c) the Director of Public Prosecutions or the Attorney General, as the case may be, has decided not to bring, or to enter a nolle prosequi under section 12 of the Criminal Justice (Administration) Act 1924 in proceedings against the person for an offence consisting of an act or omission that constitutes in whole or in part the offence specified in the European arrest warrant issued in respect of him or her, for reasons other than that a European arrest warrant has been issued in respect of that person.

Alas, the passages in bold are, in fact, no longer law.

Even though the document on the DOJ website notes at page 2 that the law was amended in 2005, it fails to fully reflect the changes to section 42.

In the words of then Minister for Justice, Brian Lenihan (for it was he), as he proposed the alteration to that section in the Senate

The essence of this amendment is to provide for the deletion of section 42(c) of the European Arrest Warrant Act

In fact, the new section - adopted to murmurs of approval by the Opposition - simply re-enacts s.42(a) and (b). Why does the 2005 Act not simply repeal s.42(c), instead of laboriously re-enacting (by its section 83) s.42 (a) and (b) of the 2003 Act ?

Moreover, if one consults the "Arrangement of Sections" of the 2005 Act, one will see several sections entitled "Amendment of Section ... of the 2003 Act" but s.83's title is "Proceedings in the State".

Indeed, a total of fifteen sections of the 2003 Act are amended by Part 8 of the 2005 one, and the changes are really significant. The Arrangement of Sections for Part 8, however, only refers to five amendments of the 2003 Act.

If I were very cynical, I might say that there was an organised attempt to confuse observers. I am not that cynical, not least because similar "messing" is evident throughout legislation in recent years, and even lawyers are being confused (though the more venal glorify in the work it creates for them).

It seems to me that enactment of a European Arrest Warrant (Amendment) Act would have been more straighforward.

And so, finally, to the point I started this post to make: the end result is a ridiculous one, in which an Irish resident is to be forced to fight an extradition request to face charges in France relating to a death which occurred in Ireland. The case has already been exhaustively, if inconclusively, investigated in Ireland, the Director of Public Prosecutions has declined to proceed, and the subject has been successful in related defamation proceedings. (See here for a short summary of the long saga.)

Mr Lenihan justified the removal of s42(c) by saying

The existing provision would be workable in a case where all the evidence had been known and available to the Irish authorities when the decision was taken not to bring proceedings or to enter a nolle prosequi. However, a number of circumstances can arise where this is not the case. As a result, an accused person would be able to evade justice in circumstances where there is no good reason, in principle, that he or she should not be surrendered. The most obvious case where this can arise is where there is no evidence available in this jurisdiction or insufficient evidence to warrant the case proceeding. In these circumstances, a decision may be made not to prosecute the person concerned. As currently worded, the paragraph could operate as a bar to a person’s extradition for the same offence to a jurisdiction which has the evidence to deal with that person.

We shall see in due course, but one would have to doubt that the French investigation of the du Plantier murder will have been able to come up with new evidence. Even if it did, it should be provided to the DPP who can re-consider his decision not to prosecute.

A common meme of discussion on politics and politicians in Ireland (and elsewhere) is that politicians are "out of touch" with the feelings, concerns and even the requirements of the voters to whom they are responsible and accountable.

Maybe they are - some of them certainly are - but it seems to me that it is unlikely that, as a class, politicians are more out of touch than anyone else. To the contrary, in fact.

Since so much of our discussion of these matters takes place in the mass media, almost always in contexts chosen and moderated by journalists, and in which journalists are often the only interlocutors, it is inevitable that the voters to whom reference is made in those discussions are not the generality of voters but those voters with whom the journalistic class identify.

I do not intend to suggest that journalists as a class identify solely with a narrow group rather than with the generality. They do tend to so identify, however, and I do intend to insinuate that journalists, and the "lay" people with whom they like to discuss current affairs, may well be more out of touch than politicians are.

As always, I may well be wrong.

But I ask you to consider this:

• Elected politicians owe their jobs to being in touch
• Out of touch politicians lose their jobs
• In Ireland at least, journalists have a dreadful record when it comes to predicting election results
• Journalists who are out of touch with the general electorate do not lose their jobs

It is not guaranteed to be so, but I suggest that people whose future depends on getting public opinion right are more likely to succeed in that than people whose futures are not so dependent.

A recent decision by the Irish High Court (Peart J.) exposes some of the sloppy banking and legal practices which characterised the Madness, and have contributed to the scale of the crash. The case is remarkable in a number of ways and I may return to the sloppy practices on another occasion.

I will here confine myself to noting this summary by Peart J. - a former solicitor, be it noted ! - of how the court will approach an application to enforce a solicitor's undertaking:

In summary, the following principles emerge from the judgment of Laffoy J. and Geoghegan J. in Coleman, and the authorities considered therein:

1. The Court has an inherent jurisdiction in matters concerning the conduct of solicitors, being officers of the court, including but not confined to compliance with their undertakings.
2. It is both a punitive and compensatory jurisdiction.
3. It is discretionary and unfettered in nature requiring each case to be considered on its own facts and circumstances.
4. In its exercise, the Court is concerned to uphold the integrity of the system, and the highest standards of honourable behaviour by its officers - a standard higher than that required by law generally.
5. The order made by the Court can take whatever form best serves the interests of justice between the parties.
6. In the matter of undertakings, the Court must consider the entire undertaking in order to reach a conclusion as to its real ultimate purpose.
7. The Court may order compliance with the undertaking, though late, where there remains a reasonable possibility of so doing.
8. Even where the undertaking may still be complied with, the Court may nevertheless order the solicitor to make good any loss actually occasioned by the breach of undertaking, which may or may not be the entire of the sum which was the subject of the undertaking.
9. Where compliance is not possible to achieve by the time the Court is deciding what order to make, if any, it may order the solicitor to make good any loss actually occasioned by the breach of undertaking.
10. Carelessness or other form of negligence on the part of the person affected by the undertaking, and in relation to the matter the subject thereof, may be a factor which the Court will have regard to when determining what order may be fair and just.
11. Any order the Court may make ought not be oppressive on the solicitor. Nevertheless, gross carelessness or other conduct considered sufficiently egregious by the Court, though falling short of criminal behaviour or even professional misconduct, will entitle the Court, should it consider it just to do so, to order payment of the entire sum which was the subject of the undertaking, and not simply a lesser sum in respect of loss actually occasioned by the breach of undertaking.

To these statements of principle which I perceive to emerge from Coleman and the other cases referred to therein, I would add one other which is linked in a way to that at 11 above.

It is this. It seems to me that the special supervisory jurisdiction being exercised by the Court in these matters is not unlike an equitable jurisdiction, given the wide discretionary nature thereof, and its objective of ensuring that justice is done between the parties in a broad sense.

In my view, therefore, it seems to me that it is not inappropriate or otherwise wrong for this Court to have regard to the overall behaviour of the solicitor, somewhat akin to seeing whether a person who is claiming an equitable relief has come to court with clean hands, even where the undertaking may be still reasonably capable of being completed, and even where the loss actually occasioned and sustained by the claimant may be less than the entire sum which was the subject of the undertaking.

The Court went on to order that the firm of solicitors should pay over to the bank the entire amount of the loan (€3m) plus interest and costs. This was approximately €1 million more than it would cost to belatedly comply with the undertaking.

Now, that's what I call "non-oppression".

You leave your house to go to work. You get into the car, start the engine and then realise that your windscreen is covered in frost. You jump out, run into the house to get some water, knock down your small child and have to console her. When you emerge again, still only 5 minutes later, your vehicle has been stolen.

Your insurer says that it will not cover your loss, as you left the vehicle "unlocked and unattended" and with the keys "in or on" it. You therefore failed to take "reasonable care" of your property, and you cannot expect the insurance company to pay for that.

It's obvious, no ?

Well, no it isn't,as the UK's Financial Ombudsman Service make clear here.

Have our journalists and politicians forgotten the distinction between "necessary" and "sufficient" ?

For example, as all adults know, many things (such as water, flour, heat) are necessary in order to produce a loaf of bread. To take just one, bread will not be produced if there is no heat (and not just any heat). So, if heating is not available, it is rational to repeat, until it is accepted and rectified, that the absence of a hot oven is a bar to progress on the bread issue.

However, it does not follow that solution of the hot oven deficit will be sufficient to solve the bread shortage.

As for bread, so for a healthy functioning credit system: NAMA, if I am wrong but the Government is correct, is necessary for "the banks are to start lending again", but it is most definitely not sufficient to bring that result about.

Journalists, politicians and other commentators, please take note. We need a better-quality debate.

Via Gerard O'Neill again

Irish sales managers and directors ... are increasingly of the view that the worst is over in the Irish market, with recovery coming slowly but eventually. And one good test of their optimism - one in four sales managers expects to expand their sales team this year

The full survey is here.