The conviction and jailing for 12 years of former solicitor Thomas Byrne is a considerable and most noteworthy achievement for both the Garda and the prosecuting services, and the public also owes a debt of gratitude to whistleblower Barbara Cooney for bringing Byrne to the attention of the Incorporated Law Society. The case involved the theft of some €52 million from banks and the defrauding of 13 of his clients out of their homes or money. The 27-day trial was the most substantial and complicated fraud case yet to come before the courts.
Byrne’s victims, although pleased with the outcome, remain understandably aggrieved that the Law Society, while paying legal costs associated with recovering their stolen assets, was not willing to compensate them for what in many cases was the very substantial consequential losses they suffered because of the property crash and the loss in market value of their properties while they were stuck in legal limbo. In some cases that meant individual losses of over €200,000.
The Law Society pleads that helping out Byrne’s victims cost the society some €8.3 million. It says its compensation fund has a statutory mandate which would not allow it to fund consequential losses and that it is not aware of other legal funds internationally which would do so.
That may indeed be the legal position, but its articulation will have done the society and profession no PR favours. The plea that it can do no more because it is legally constrained, with the unstated implication that the profession would only love to do more, will be seen by most as deeply disingenuous. Is there really no mechanism under which the Law Society could make ex gratia payments to Byrne’s victims?
It is also the case, moreover, that in other spheres of legal compensation consequential damages are very much part of any calculation – if a surgeon saws off the wrong leg of a patient, his medical malpractice insurance will probably, depending on the patient’s occupation, have to cough up for the total expected lifetime earning of a promising career cut short. Indeed, the State is facing massive claims over theoretical consequential losses arising from the allegedly improper awarding of a mobile phone licence .
The Law Society was out of the traps on Monday very fast indeed with the insistent message that it had done all it could, as fast as it could, to help the victims and close the Byrne operation. There is no doubt that in closing his office within two days of receiving information from Ms Cooney, it acted properly and promptly – but there remain some questions about why the society had not detected his activities before. As for helping the victims , it should find a way to do more.