Monday, 28 March 2011

High Court Judge rejects Medical Certificates for Ill Lay Litigant

 The following report was first published on Indymedia Ireland

High Court Judge Rejects Medical Certificates For Ill Lay Litigant as Inadequate

SUMMARY: If the State, in the name of the Irish people, prosecutes you wrongfully or maliciously, and the State loses, you can sue for damages. When you are good and ready to go ahead, the State can send you a letter ordering you to appear in another court where they will ask another judge to strike out your case. The reasons given are usually that your case is "vexatious" or "unlikely to succeed". Or if you fall ill and under doctor's orders, the reason could be "for want of prosecution".
Kevin Tracey's six cases were struck out by the President of the High Court on 4 March last. His doctor's and hospital consultant's certificates were deemed by the Judge to be inadequate. He is allowed to "appeal" to the Supreme Court but as a lay litigant who is still under doctor's orders, the odds are stacked against him to carry through or win such an appeal.

"Even a Man on his Death Bed Would be Able to Write an Affidavit", said President of High Court

In Dublin's Four Courts, on Friday 4th March 2011, a lay litigant, Kevin Tracey, had six of the cases he was taking against the State and Courts Service struck out for want of prosecution by him while he was ill and unable to attend court. The cases taken by Kevin Tracey were related to ten prosecutions of himself by the State. The State had lost all cases except for one which it had withdrawn on the morning on which the case was due to be heard after numerous witnesses from the Courts Service had been sub-poenaed. Kevin Tracey contends that all of the prosecutions are malicious.

On foot of the results of these different and separate cases (which the State had lost or withdrawn) Kevin Tracey had been engaged in suing the State and others for malicious prosecution of him. However, he was suddenly struck down by illness in July 2010 after which he was hospitalized for several weeks. He has been attempting to recuperate since then and remains under doctor's medical care and advice.

The sudden illness and its aftermath prevented him from attending court or engaging in the work of prosecuting any of the six cases. He was hoping to have all six cases heard by a Judge and jury. The courts were kept informed by his wife of his inability to attend because of his continuing illness and the fact that he was under doctor's orders. Hospital and GP certificates were provided to the Court.

The GP's first certificate, dated 2 September 2010, stated that Kevin Tracey would not be able to conduct his affairs for a period of six months.

In the Four Courts, on Friday 4th March, 2011, Justin Morahan, a human rights activist, handed Judge Nicholas Kearns the most recent certificate from Kevin Tracey's GP, dated 23 February 2011. This certificate stated, after outlining his medical condition, that Kevin Tracey would be unable to work or attend court for the next six months.

On Friday 4 March 2011, the State and the Courts Service asked that all of the cases be struck out for want of prosecution basing their case on a Motion and an Affidavit written by Niall O'Shea of the State Solicitors office. They said that there had been an inexcusable and inordinate delay and they had suffered prejudice. The Courts Service contended that court clerk Bernard Neary who was among those being sued by Kevin Tracey, had forgotten the incidents about which he was being sued.

Judge Nicholas Kearns allowed Justin Morahan to make a verbal submission. Justin Morahan said that he had come to court only to explain Kevin Tracey's absence and to hand in his doctor's certificate that had been requested by the Judge. He said that he had no legal training and he was up against eminent barristers and solicitors. He asked that the motion of the State and Courts Service be struck out, so that Kevin Tracey could prosecute his cases when he was in better health. These were cases where the State and its agents had engaged in the most serious wrongdoing against Kevin Tracey. Justin Morahan said that Kevin Tracey, even in the words of the State Solicitor's Affidavit, had "advanced the litigation in an expedient and determined manner" until July 2010, - and that was the exact date of Kevin Tracey's sudden illness and hospitalisation.

It would be a very grave and serious miscarriage of justice, Justin Morahan said, if a man's inability to come to court - an inability vouched for by his GP and Hospital Consultant - were to allow the State and Courts Service to have these prosecutions against them for their own serious wrongdoing struck out before they could be heard by a judge and jury.

The Judge remarked that he would not be accepting Kevin Tracey's Doctor's certificate as adequate.

When Judge Kearns then began to give his verbal judgement, Justin Morahan interjected to say that he had an important point of information that he wished to supply to the court before judgement was entered. Some weeks ago, while Kevin Tracey's first certificate was still valid and Kevin Tracey was unable to attend court, Judge Kearns had proceeded, in Kevin Tracey's absence, to deal with two other of his cases, struck out one of them, and removed the second one from the jury to the non-jury list. These decisions of Judge Kearns were now being appealed to the Supreme Court and as a result, on Kevin Tracey's behalf, he was asking Judge Kearns to recuse himself from this case.

Mr Justice Kearns refused this request.

The President of the High Court, Mr Justice Kearns, in his judgement, rejected the GP's medical report. He said that he had heard nothing to convince him that the delay was not inexcusable and inordinate. Some of the defendants had even forgotten the events. Kevin Tracey should have replied to the State Solicitor's (Niall O'Shea's) recent Affidavit. Even a man on his death bed would be able to write an Affidavit, he said.

The Court, he said, had previously made a specific regulation that a detailed medical report from an appropriate expert was needed by the Court if these cases were to be adjourned again and this regulation had not been met in the certificates handed into the court.

He granted the motion of the State and Courts Service and accordingly struck out all of Kevin Tracey's cases against them

Immediately after the judgement, Justin Morahan asked Mr Justice Kearns as a point of clarification who he (Judge Kearns) would regard as an appropriate medical expert. The Judge replied that he was not used to having the clarity of his judgements questioned but again said that the medical report he had been given did not meet the required standards.

He awarded costs to both the State and the Courts Service. He said that Kevin Tracey had the right of appeal to the Supreme Court.


Before the case was heard, during the first call, Justin Morahan handed the original copy of the doctor's certificate to Mr Justice Kearns, telling him that, as it was the original copy. Kevin Tracey would need to get it back, as he would need it for other purposes and he (Justin Morahan) would supply the Judge with a copy that he could compare with he original.The detailed information about Kevin Tracey's health that was contained in the certificate was private and confidential. He then gave copies to the representatives of the State and Courts Service after they requested them.

However when Mr Justice Kearns proceeded to read out the contents of the certificate and had succeeded in reading the first ailment mentioned there, Justin Morahan intervened to prevent him from reading the certificate in open court There were press representatives present and Kevin Tracey did not wish his medical condition to become public knowledge, he said.This information was private and confidential. Mr Justice Kearns said that the only reporters present were Court reporters and they could be relied on to keep the information confidential. Justin Morahan said that he thought that he had already pointed out to the Court that the detailed information was private and confidential and Kevin Tracey did not wish to have this information relayed in open court. When Mr Justice Kearns said he had to inform the representatives of the State and Courts Service about the information in the certificate Justin Morahan told him that he had already given them their copies.

In the event, no other part of the medical report was read out by Judge Kearns.


As of today, Kevin Tracey remains ill and under his doctor's orders not to engage in litigation until his health improves.

Tuesday, 22 March 2011

A Case against War - Again

Iraq then, Lybia now. The war-mongers are abroad again. The case against them is the same. "A Case against War" was first published before the war in Iraq.

A Case against War


Justin Morahan

In the present heated debate about Iraq there appear to be three broad schools of opinion. Firstly, there are those who support the war, "regardless". Secondly, there is a school that gives its assent to war, only grudgingly. A third body of opinion opposes all war "regardless". In the massive peace marches of 15 February around the world, the latter two groups were present.

As a pacifist, I belong to the third group. I do not subscribe to the notion that "We all are against war,of course, but it is sometimes necessary or sometimes inevitable". I confess to having a passionate detestation of war. I believe that war is pure and unadulterated evil. And such an evil cannot be deemed "necessary" or "inevitable" - ever.

What Happens in an Army

Firstly, war is evil in its conception and in its organisation. A young and usually naive person is lured,or sometimes forced, into the camaraderie of a large social group called an army, where he or she is systematically taught to hate and kill any number of other unknown humans who will be called "the enemy".

The reasons given will be "defence in case of an enemy strike", "loyalty to an ally", or "fear of some dictator who seeks world domination". These reasons are seldom explained in depth to the new recruits - they are only thrown out as asides in the barrack square while the more important work of the army goes ahead. That important work is the thorough indoctrination of the recruit. Society, believing that somehow armies are necessary, allows them to work and train in secret, to demand blind obedience from recruits, to acquire whatever weapons of mass destruction they may fancy, to produce professional killers who are able to kill robotically, to create and foster an ethos in which killing other humans is a reasonable and desirable end. No matter that society generally reviles those religious sects who similarly lure and brainwash young people for their own ends, although they may never train them to kill.

To accomplish this aim of getting the worst out of the human nature entrusted to them, and fostering the darkest emotions of the human spirit, armies have created their own Orwellian language where euphemisms abound. On its own side, trained killers are called "soldiers". Its own atrocities are called "operations". Its own mass killings are spoken of as the "infliction of heavy casualties". Its crass and careless murder of non-combatants is called "collateral damage". Killing of its own allies is "friendly fire".

Similar atrocities committed on the part of the enemy will be called by their rightful name. Other atrocities that the enemy have not committed will be invented and repeated as often as possible to make them more hateful.

So armies and the politicians who put them to work foster a great culture of lies and deceipt that begins even before the first shots are fired.

The Soldier - first Victim of War

Within the army itself, all questioning is taboo, individualism is a sin, rational thinking becomes the greatest crime. You must believe that the other side is evil, and your side is good. No questions asked. Along with the more subtle indoctrination, bullying tactics are used in this closed and oath-bound organisation effectively to produce what one US officer recently described (on a TV Discovery programme) as " a better product"

The indoctrination has become complete - no longer a human being but "a product" castrated of all human emotions except those allowed and nurtured by Big Brother. The more blind and unthinking this "product" the more useful he or she will be as a soldier. "The first duty of a soldier is to obey" - de Gaulle's words have echoed in many a barrack square. Disobedient soldiers, after all, may not be inclined to rip the guts out of a fellow human while roaring in a mad rage (as soldiers are trained to do) or to open their bomb hatches over a densely populated city of sleeping families. In a war situation, a refusal on either score would be regarded as an act of the highest treason demanding a courtmartial and -what else could you expect in this culture of death - execution by a firing squad of more obedient soldiers.

So the soldier becomes the first casualty of war. Carried along on the tide, attributing responsibility to superiors - who in turn attribute it to their heads of State - soldiers carry out heinous acts that are wholly contrary to their better nature. Often too late, and when the damage has been done, they rebel against their indoctrination, throw back their medals of honour, and tell the world that war is wrong. So, recently four veterans of the last Gulf War had this to say to the soldiers who have been passing through Shannon, Ireland:

"We are veterans of the United States armed forces. We stand with the majority of humanity, including millions in our own country, in opposition to the United States' all-out war on Iraq. We span many wars and eras, have many political views, and we all agree that this war is wrong. Many of us believed serving in the military was our duty, and our job was to defend this country. Our experiences in the military caused us to question much of what we were taught. Now we see our REAL duty is to encourage you as members of the U.S. armed forces to find out what you are being sent to fight and die for and what the consequences of your actions will be for humanity. We call upon you, the active duty and reservists, to follow your conscience and do the right thing.

In the last Gulf War, as troops, we were ordered to murder from a safe distance. We destroyed much of Iraq from the air, killing hundreds of thousands, including civilians. We remember the road to Basra - the Highway of Death - where we were ordered to kill fleeing Iraqis. We bulldozed trenches, burying people alive. The use of depleted uranium weapons left the battlefields radioactive. Massive use of pesticides, experimental drugs, burning chemical weapons depots, and oil fires combined to create a toxic cocktail affecting both the Iraqi people and Gulf War veterans. Today, one in four Gulf War veterans is disabled."

The Second Victim of War

This brings me to my second reason for believing that war is evil, and that is its end product. How many examples other than those mentioned by the US veterans could be adduced! Witness Hiroshima, Nagasaki, London, Dresden, Chechnya, The Congo, Dublin and Monaghan, Bloody Sunday, Bloody Friday, New York's Twin Towers, Omagh,and ten thousand other places where the bodies of the mutilated and the dying groaned from beneath the bodies of the dead because of an "act of war".

In each and every one of these cases, it was soldiers,indoctrinated with the twin mental poisons of hate and robotic killing-ability, who carried out the atrocity. And, as Che Guevarra reminded us in his Diaries, the art and tactics of the "legitimate" army differ not a whit from the art and tactics of the terrorist.

Would any of those who are in favour of the war against Iraq, however "reluctantly", be willing to place their own baby over a fire and roast the baby alive? Yet, this is what will happen to Iraqi babies if war goes ahead. In the Amariya shelter in Iraq, over 400 women and children were incinerated by what the US military called a "smart bomb". The US suffered its own incineration on Sept 11. John Pilger described what he saw had happened to children in Vietnam ater a bombing raid during the war there: "The children's skin had folded back, like parchment,revealing veins and burnt flesh that seeped blood, while the eyes, intact, stared straight ahead. A small leg had been so contorted by the blast that the foot seemed to be growing from a shoulder. I vomited."

In the certain knowledge that the same will happen again, repeated over and over, in the present war against Iraq or any other country, how can we give our own or our country's assent to such barbaric evil?

No Such thing as a Just War

It is because war itself is evil that the idea of it being just is out of the question. How can evil ever be just? To speak of a just war, in my opinion, is a contradiction in terms.

If we want to attain what we believe to be a just cause, war is never the answer.

Just causes are as plentiful as blackberries in August, but how can any honourably just cause seriously embark on redressing an injustice by an evil means, war, that is itself unjust?

Of those who point to "successes" as a result of war, I would ask: "Have you condoned the roasting of women and children and other humans to achieve your success?"

Because of the short-term and long-term results that war brings with it, all its "successes" are hollow, and all its "victories" are Pyrrhic.