Parchment Spring 2015

Parchment DSBA.IE

the

D UB LIN SOLICITORS’ B AR ASSOCIATION MAGAZ INE | SPRIN G 2015 | ISSU E 63

CIVIL COURT OF APPEAL UPDATE 20 MINUTES WITH JONATHAN DUNPHY

OVER THE RAINBOW

Muriel Walls on why the Marriage Referendum must be yes

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Spring 2015 dsba.ie

From the Editor

W

elcome to the spring Parchment and to a bumper edition of articles, interviews, news and opinion. The introduction of the new Children and Family Relationship Bill will herald wide-ranging and positive changes for family law in Ireland. Government rapporteur on child protection, Dr Geoffrey Shannon’s article provides an excellent overview and he says that the bill is hugely positive and the most comprehensive overhaul of the law on children and family relationships in decades.

Stuart Gilhooly cross-examines leading family law solicitor Muriel Walls and she speaks openly about many aspects of her life and practice. Killian Morris meets Jonanthan Dunphy, solicitor to Graham Dwyer and criminal law practitioner based in Dun Laoghaire.

The enormous new legislation that is the Companies Act 2014 comes into force on June 1st.

Paul Egan writes a useful overview of the issues that companies now face and the actions that should be considered in light of the planned changes to the law.

I wish to mark this edition of the Parchment with

a tribute to Justin McKenna, the magazine’s founder who is stepping away from the magazine after 19 years. Justin was the founding editor in 1996 and the success and growth of the Parchment is owed to his immense work and tireless commitment to the DSBA. Maura Smith celebrates 10 years working at the DBSA and we mark her decade of contribution with a fitting tribute. She is a legend and greatly admired by us all.

This edition also has articles on the new Court of Appeal, an assessment of the professional indemnity market, advice for clients who have capacity issues, how to get the most out of social media for your practice and lots more. Happy Easter.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2014

AARON MCKENNA DSBA President

EAMONN SHANNON Vice President

AINE HYNES Programmes Director Chair - Mental Health and Capacity Committee

ROBERT RYAN Honorary Treasurer

ELAINE GIVEN Honorary Secretary

DIEGO GALLAGHER Chair - IP & Technology Committee

TONY O’SULLIVAN Chair - Property Committee

JOE O’MALLEY Chairman of the Litigation Commitee

GREG RYAN Chair - Commercial Law Committee

CAROL EAGER

SUSAN MARTIN

VICKY PIGOT Chair - In-house Lawyers Committee

PETER BOYLE

JOHN O’MALLEY

MATTHEW KENNY

The DSBA, its contributors and publisher do not accept any responsibility for loss or damage suffered as a result of the material contained in the Parchment.

of an advertisement in the Parchment does not necessarily signify official approval by the DSBA, and although every effort is made to ensure the correctness of advertisements, readers are advised that the association cannot be held responsible for the accuracy of statements made or the quality of the goods, services and courses advertised.

All prices are correct at

time of going to press.

Views expressed are not necessarily those of the DSBA or the publisher. No part of this publication may be reproduced in any form without prior written permission from the publishers.

EDITOR John Geary PARCHMENT COMMITTEE Stuart Gilhooly Justin McKenna Kevin O’Higgins Gerry O’Connell Killian Morris Julie Doyle Áine Hynes COPYRIGHT The Dublin Solicitors’ Bar Association

PUBLISHED BY The Dublin Solicitors’ Bar Association, 90 Harcourt Street, Dublin 2.

DSBA OFFICE, T: 01 476 3824 01 476 3846 F: 01 418 9772 E: maura@dsba.ie DX 212011 W: www.dsba.ie ADVERTISING ENQUIRIES Donal McDonald T: 01 707 6036

DISCLAIMER Advertisements are accepted at the discretion of the magazine which reserves the right to alter or refuse to publish any item submitted. Publication

WHEN YOU HAVE FINISHED WITH THIS MAGAZINE PLEASE RECYCLE IT.

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Spring 2015

Contents 6

20 Minutes with...

10

Truly Historic Legislation

14

The Companies Act 2014

Killian Morris talks to criminal practitioner Jonathan Dunphy

Personally the most rewarding work is that carried out on behalf of vulnerable people page 6

20 MINUTES WITH... JONATHAN DUNPHY

Dr Geoffrey Shannon gives an overview of the new Children and Family Relationship Bill

Paul Egan reviews the Companies Act 2014 and gives some advice on the impact of its enactment

18

Cross Examination

22

New Civil Court of Appeal

Stuart Gilhooly interviews solicitor Muriel Walls

Joe O’Malley looks at the new civil appeals regime and highlights significant changes in the appellate structure of the Irish Superior Courts

28

Tax Update Brian Broderick and Finola O’Hanlon scrutinise two recent tax developments

Dublin Solicitors’ Bar Association 90 Harcourt St, Dublin 2, Ireland T: 01-4763824 E: info@dsba.ie W: www.dsba.ie

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Spring 2015 dsba.ie

Contents

REGULAR FEATURES 01 Editor’s Note 04 President’s Message 56 News 51 Photocall 64 Closing Argument

34 32

Indemnity Insurance Renewal review David Rowe reviews the professional indemnity insurance renewal process

34

Act of Charity

40

Local Authority Litigation

48

Cormac Brennan and Carol Hogan review the longawaited commencement of the Charities Act

Denis Ryan considers where local authorities stand in respect of personal injury claims

42

DSBA Book Awards Shortlist The finalists for the awards in June have been announced

48 54

Social Media Influence Lesley Moore points out the importance for law firms and solicitors to have a social media presence

Capacity Issues Aine Hynes provides practical guidance for when capacity issues arise in practice

18

Muriel Walls has personal reasons for supporting the Yes vote for the referendum in May, so she can marry her longtime partner Rosemarie the Parchment 3

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Message from the President

Ich bin ein Berliner

I

would like to begin this edition’s President’s message with a special mention, and to mark a significant milestone in the recent history of the Dublin Solicitors’ Bar Association. Our industrious and illustrious, administrator, Maura Smith is ten years in the job, and I think it is fitting that homage is paid to someone who has been there through the tenancy of ten past presidents. Maura has delivered year in and year out as the front line of the DSBA, and the immediate point of contact for our members. Her knowledge of our members’ needs and how she channels that information through to management and council is a vital part of how we deliver our services. I can say that since I took on the job of president of the Association, I have especially realised how invaluable her contribution is and I want to personally thank her for that. I know she will be put to the test again with our office move which is imminent! I am absolutely certain that all of the other presidents that have passed through her safe hands over the time will agree and join me in wishing Maura all the best for the next decade and beyond.

I was delighted to have been invited to the Southern Law Association’s annual dinner last month, and want to thank them sincerely for their southern hospitality. A truly fantastic evening. I want to refer to a wonderful speech delivered at that event by our past President Kevin O’Higgins, concerning our female colleagues in the workplace and congratulate him on bringing this matter to the forefront of the agenda again. The statistics are striking, when one looks at the wage disparity in today’s world, and the fact that our female colleagues earn 70% of the salaries of their male counterparts. This is in my view, and quite frankly, an embarrassment to our modern day profession, and as someone who practises employment law, dangerously unequal. The President of the District Court, Rosemary Horgan has formally brought the matter to the attention of the DSBA and our support for change in this area is guaranteed. Change must come from within our practices and I would urge the management of those practices to bring matters up to date speedily.

From a practice viewpoint, the DSBA has been monitoring the Companies Act 2014

The statistics are striking, when one looks at the wage disparity in today’s world, and the fact that our female colleagues earn 70% of the salaries of their male counterparts and will continue to keep members abreast of the implications of this mammoth piece of legislation with almost 1,500 sections.

Another crucial and long awaited piece of legislation, the Children and Families Act of 2014 will receive similar close attention over the coming months. The Legal Services Bill is still very much on the agenda and we understand that amendments are due before the bill progresses to the next stage,

and we look forward to those amendments which our taskforce will study. I want to say a big thank you to Judge Sean Ryan who this month, in conjunction with our Litigation Committee, helped us deliver a hugely successful CPD seminar on the new Court of Appeal, and for his continued support over the years.

On a lighter note, the word is out, the annual DSBA conference is heading to Berlin, the scene of much economic activity and decision making in recent times. Every effort has been made to keep the cost per head to a minimum, while still ensuring that the accommodation and the event itself is of a particular high standard. Having tested the place out recently with my Vice President Eamonn Shannon, I can confirm that it more than does. The five-star Ritz Carlton will house us, and we are aiming to have our gala dinner in the Reichstag. I hope you will support us and sign up early for what promises to be a memorable trip to a city of great relevance and culture.

Aaron McKenna, DSBA President

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Jonathan Dunphy Solicitors

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Spring 2015 dsba.ie In conversation with Killian Morris of AMOSS Solicitors

20 Minutes With...

Jonathan Dunphy

Website presence and social media content are now essential to cater for the ever growing number of potential clients accessing your details

Jonathan is currently in the news as the solicitor representing Graham Dwyer in the Elaine O’Hara murder trial

When did you qualify?

I qualified Easter 2002. After graduating from UCD, I spent several years with Hussey Fraser on Northumberland Road in Dublin followed by two years in Matheson around the corner on Herbert Street completing my apprenticeship in the commercial law department. Before launching into the next phase of a serious career, I decided to take a year out working and travelling in Australia with my now wife, during the 2003 Rugby World Cup. If you hadn’t become a solicitor what would you have done?

In my dreams, Larry Mullen Jnr’s position as U2’s drummer and founder would be under threat, while every other hour I would be playing professional rugby for Leinster and Ireland. Back to reality however, from an early age, I always wanted to have my own business, no matter what the industry or field. I recall recycling the majority of my presents as a child by placing ads in the local supermarket and then saving up the proceeds to buy the latest Star Wars figure. I’m sure that drove my generous parents mad.

Have you any funny anecdotes from your time as a trainee/apprentice?

I was asked by my master to serve urgent judicial review proceedings on a developer down the country. After doing so I was chased down the quays in Cork by the angry

respondent – that’s when it dawned on me, no wonder my master offered to fly me there and back! His last instruction before I left the office in Dublin was ‘don’t stick around when you serve that’. Thankfully I out ran that gentleman and it taught me a valuable lesson – always get clear instructions and, if in doubt, use a summons server.

If we asked your best clients to describe you – what would you expect/hope they might say?

I hope they would say that I always listen to their concerns and deal with their predicaments with professionalism, confidence and compassion. We as lawyers are in the business of solving problems and easing burdens; it’s important that clients are fully prepared and understand the process.

What was the most memorable moment in practice?

I am lucky to have had more than one but two recent examples stand out.

Firstly, successfully campaigning over a two-year period, with the assistance of colleagues, against the proposal to close various district courts in suburban Dublin.

I think I can speak on behalf of most of my colleagues in saying that it is a pleasure to see court staff, judges, the gardai and the probation service, to name but a few, still bustling into these district courthouses during the week, carrying out such valuable

work locally in the administration of justice.

Secondly, it might seem trivial, but stepping out there on day one in Dun Laoghaire District Court, 10 years ago now, with a blank foolscap pad, a set of new pens, business cards and my name on the Legal Aid panel that week. After a warm and gracious welcome by Judge Clare Leonard, I was away on a hack and thankfully I haven’t looked back since then.

As a criminal law solicitor, what efforts can you make to market your practice amongst prospective clients?

If you consistently work hard in a professional and effective manner, no matter what area you practice in, this will, in time, earn you a reputation worthy of receiving referrals. Website presence and social media content are now essential to cater for the ever growing number of potential clients accessing your details on their smartphone or similar device. I was honoured to be appointed the Chair of the DSBA Criminal Law Committee this year and it is very encouraging to see the development of criminal firms through technology and the internet.

When individuals find themselves the subject of a criminal investigation, they do not publicise that fact in fear of perhaps losing their job or upsetting, or losing the support of, a loved one. People in times the Parchment 7

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Spring 2015 dsba.ie

20 Minutes With...

Photography: Paul Sherwood

I have seen the damage, disruption and hurt that inaccurate media reporting has had on people’s daily lives of trouble do their research and/or usually confide in somebody close to them to do it on their behalf. Dublin is a small place and everybody seems to know someone who has come into contact with the gardai. I won't argue that involvement in high profile murder cases or dealing with well known personalities doesn’t help in getting you noticed but, given the nature of criminal work, it really comes down to people recognising your achievements in the past for others. It tends not to be something that happens overnight to a practitioner.

The influence of the media in the courtroom, is it generally positive or in need of reform?

A case I am currently working on has attracted an unprecedented amount of media interest both here and abroad.

Unfortunately, that can bring with it some novice reporters with little or no court experience showing up for some sort of a quick scoop or headline. I have seen the damage, disruption and hurt that inaccurate media reporting has had on people’s daily lives, not to mention the trial process. Jury trials and court appearances can be the most stressful experiences of a person’s life, be they a victim, a member of their family, a witness, jury member, or the accused.

I am the first to recognise the importance of reputable journalists reporting accurately on court proceedings, they form an essential part of the process. It saddens me however, when witnesses and family members are chased down the quays by photographers increasing the stress and pain on their already difficult day. The arrival of Twitter and smartphones in general have increased the risk of interference with the court process and I imagine the judiciary are not pleased with having to police this as well as preside over a lengthy complex trial. I think it is safe to say we will no doubt see an increase in contempt of court proceedings being availed of, to combat such intrusions.

There was a time when apologies and charitable donations by members of the media and public were sufficient to remedy any such intrusion, and in some cases it still may be, but now we need to go further if the problem persists.

What was the greatest challenge you faced after setting up in practice on your own?

Without doubt, the challenge of getting paid for work done, to enable me to run the office day-to-day. Clients are the first to acknowledge a great result and hard work and have no problem paying for that

service. However, it surprises so many people that it is in fact, the work carried out under the provisions of the Legal Aid Scheme that takes the longest to be remunerated for. Personally the most rewarding work is that carried out on behalf of vulnerable people, who cannot afford to pay legal fees, given their difficult circumstances. They are assigned legal aid but that comes with a health warning – for some nonsensical or perhaps deliberate reason, legal aid payments to our profession are currently exempt from the prompt payments legislation.

The most complex and high profile of cases are generally the least paid, hence the importance of solicitors being devoted to their work. Continuous cuts, inequality of rates between solicitors and barristers and the delays in the payment of legal aid fees by the State, will no doubt result in a serious reduction of talented lawyers due to the lack of incentives to enter this area of the profession.

What do you think is the biggest issue currently facing the solicitors' profession?

I consider people in this profession to be among the most hardworking and gifted, who strive to represent clients in the most efficient and skilled manner in accordance with the law. In times of continuing cuts to legal fees and reducing budgets to the relevant departments tasked with the administration of justice, achieving the profession’s objectives is challenging.

We cannot arrive at a situation where solicitors may be discouraged from taking on difficult cases due to the fact that they will not be paid appropriately for their time. If somebody is unfortunate to land themselves into serious trouble, regardless of their means, they will want access to the best lawyer for the job. Whether that lawyer is paid for privately or under the provisions of the Legal Aid Scheme, the challenges mentioned above can only threaten the current system and the freedom of access to the best legal advice.

Describe an event in your personal life which has had the most important impact on your development as a solicitor?

Without doubt, the rewards of marriage and the arrival of children has given me a greater appreciation of life and a broader perspective and understanding of issues (be they good or bad) that so many of my clients face day-to-day. It has also caused me to be more driven in terms of my ambitions, not to mention my time management!

What would be your dream holiday?

A secluded island for the five of us with barbeques and hammocks, surrounded by yachts, surf, sand and sunshine and a team of staff to look after ‘La Familia de Dunphy’.

Failing the provision of a team of staff however, make no mistake, another Rugby World Cup in Australia please!

Describe a typical day in the life of Jonathan Dunphy?

This is where one might say that they rise at 5am and go for a 10k run in preparation of their monthly triathlon. Well even though I do rise at 6am, there is a battle to avoid my suit being smeared with porridge by my enthuastic three children, looking for that morning hug goodbye and a definitive answer as to whether or not I will be late tonight! My six-year-old son told his school teacher that I spend most of my time in prison hence the awkward parent/teacher meeting recently. I am very fortunate to have a great team around me; one of my biggest supporters, my wife, manages the team at home, and then the staff at the office, captained by Anne, ensure that when I land at 7.30am, we get straight into the work, preparing for all the court appearances across Dublin that morning.

Most mornings I will be on my feet in Dun Laoghaire Court defending my client’s interests or at a jury trial in the Criminal Courts of Justice complex working with some of this country’s finest barristers and judges. Afternoons vary but involve consultations or visits to clients in custody, be that in a prison or a garda station.

My practice is litigation, the majority of which is criminal defence; so every day brings a new challenge. While the work is extremely demanding and we are adjusting to the new practice of sitting in on garda station interviews at times, I couldn’t think of a more interesting and exciting role for a lawyer in 2015.

Any advice for those entering the profession in 2015?

Needs must when jobs are thin on the ground, but if at all possible, choose an area of law that you have an interest in or passion for, one you can see yourself devoting your time and efforts to and hopefully excelling. If you achieve that, and surround yourself with good people, not only will it benefit your learning and skillset but also your clients and the people you work with day in, day out. We've all seen colleagues fail to be brave and make poor decisions which ultimately hampers their productivity and has an equally negative effect on their personal lives. My parents instilled in us, by example, to work hard, be honest and well mannered, no matter what your environment throws at you and that you can achieve anything if you set your mind to it. Simply go for it! P the Parchment 9

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Truly Historic Legislation Government rapporteur on Child Protection Dr Geoffrey Shannon gives an overview of the new Children and Family Relationship Bill. Describing it as progressive, comprehensive and hugely positive, he says the bill promises to change family law in Ireland as we know it, for the better

T

he Children and Family Relationships Bill 2015 represents the most significant change in family law in a generation, reflecting the reality of modern family life in Ireland.

Until recently family life in Ireland was synonymous with marriage. The increasing fluidity and diversity of family forms mean that it is no longer tenable for Irish law to recognise only one type of family. The constitutional preference for families based on marriage remains intact, but it is essential to provide certainty for all families, whatever their status.

The new framework to be implemented following the passage of this bill will radically overhaul many existing rules and will create new rights for parents, both biological and social, and most critically for children. This is an important milestone on the road to recognition of children as rights’ holders.

Until the enactment of the Status of Children Act 1987, children born to unmarried parents were considered illegitimate. The 1987 Act abolished the concept of illegitimacy and in just over 25 years, a seismic change has occurred in Irish society. Recent statistics show that in the second quarter of 2014, 36.1% of registered births were outside marriage.

These include situations involving lone, unmarried parents; unmarried and co-habiting couples; various types of blended families; and children living with their parent and a non-biological, civil-partnered parent. According to the latest figures available, almost 352,000 children live with a lone parent; 104,665 children live with co-habiting, unmarried parents and there are 230 same-sex couples with children. The

Children and Family Relationships Bill 2015 will bring a diverse range of family types in from the cold, offering greater protection for children in all family types including step-parent families and families headed by co-habiting couples, gay or lesbian couples or by other extended family members. The provisions relating to these families are a practical expression of the principled, rights-based approach which informs much of the bill.

Key Provisions The provisions contained in the bill are progressive and will provide greater clarity and protection that will benefit children in all families. There has only been piecemeal reform to the law on the family outside marriage since the Guardianship of Infants Act, 1964.

In this context the bill’s overhaul of the legal position of a diverse range of family types is to be welcomed in that it reflects the social reality of contemporary family life in Ireland. It is a vital opportunity to bring Irish law into line with international best practice.

The bill adopts a principled, rights-based approach by providing that the best interests of the child are to be paramount in decision making, and that the ‘voice of the child’ should be heard as much as possible.

These two elements are children’s rights principles which are recognised internationally as best practice.

Various changes in the bill resulted from a consultation process with relevant organisations and experts, including a provision to ensure that a child born through assisted-human reproduction has the right to know his or her genetic identity. This will

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Spring 2015 dsba.ie Dr Geoffrey Shannon is a solicitor and the Government rapporteur on Child Protection

involve a prohibition on anonymous donation of genetic material and the establishment of a national, donor-conceived person register. A provision on the child’s right to identity in line with Articles 7 and 8 of the UN Convention on the Rights of the Child is another welcome development.

The bill provides various different pathways to parentage. This is achieved in part through legal recognition of the changing family landscape in modern Ireland where diversity in families is ever more common. These families deserve recognition, security and equity. Allowing for parentage to be legally confirmed and recognised is an important element in this process. It is vital for children, in that it ensures that those providing, supporting and caring for the child are given the rights, responsibilities and legally consequential duties attendant upon parenthood. An example of the commitment to this approach demonstrated by the bill is the defined maintenance obligation imposed on civil partners in respect of dependent children.

One major development is in the area of guardianship. For the first time, non-marital fathers co-habiting for a specified period with the child’s mother will be entitled to automatic guardianship.

Under Section 49 of the bill, a parent or another eligible adult can apply to court for guardianship. An eligible adult is a person who is married to or in a civil partnership with a child’s parent, or has co-habited with the child’s parent for three years and shared responsibility for the child’s care for a two-year period.

Persons who have cared for the child for one year,

Family Law

For the first time, nonmarital fathers co-habiting for a specified period with the child’s mother will be entitled to automatic guardianship

where no other parent or guardian is able or willing to fulfill the rights and duties of the role, may also be eligible to apply for guardianship. This therefore allows foster parents and other adults who provide day-to-day care for children to apply for guardianship on notice to the Child and Family Agency. The legal ability to formalise the relationship between a child and their de facto parent is critical to ensure security, fairness and clarity in the child’s life and upbringing. And the bill’s recognition of this is an important step which should be welcomed. In addition, the bill enables temporary guardians to be appointed on notice to the Child and Family Agency.

The 2015 Bill also broadens those eligible to apply for custody. Moreover, it introduces a more streamlined procedure to enable members of the wider family to apply for access to the child.

Structural Reform While the 2015 bill is a hugely positive development, it must be accompanied by structural reform. The establishment of a specific family court system is promised in the Programme for Government and is necessary for a fair and effective forum to vindicate the rights of children and families.

The Children and Family Relationships Bill 2015 is the most comprehensive overhaul of the law on children and family relationships in decades. It is a unique opportunity to modernise the law in the area and provides legal recognition of the many different and diverse family relationships that exist in modern day Ireland. P the Parchment 11

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Loughlin Deegan is an associate at Byrne Wallace Solicitors

Employment Law

New Employment Laws on the way Loughlin Deegan provides a brief summary of some significant pieces of new employment legislation which the Government has promised for the months ahead

The bill will give significant new enforcement powers to the body currently known as NERA and will introduce elements of criminal enforcement into areas of employment law which previously were subject only to civil redress

T

he Government’s legislative agenda for the spring and summer of 2015 promises that this year could well be the busiest ever for employment legislation in Ireland.

The first item to be enacted is likely to be legislation to establish a Low Pay Commission. The Government has already appointed members of this Commission on a non-statutory basis. Most of the members of the Commission come from trade union, employer and academic backgrounds with Dr Donal de Buitleir as its Chairperson. The Commission will replace the Labour Court in the process of the setting of the national minimum wage.

This legislation may have relevance to certain sectors previously governed by joint labour committees (JLCs). JLCs had, until 2011, set special sectoral minimum wages, higher than the national minimum wage. The system was struck down by the High Court in 2011 and restored by the Oireachtas (with significant amendments) in 2012. Employers in several of the sectors formerly regulated by JLCs have, to date, declined to participate in the new structures. This means that sectors such as hotels, catering and retail grocery may fall out of the JLC system and into the Low Pay Commission structure.

In a separate development, the Industrial Relations Acts are due for two separate pieces of amending legislation.

The first change will deal with the former registered employment agreement (REA) mechanism. This was a system which existed from 1946 until it was struck down by the Supreme Court as unconstitutional in 2013. This system allowed employers and unions to make agreements relating to pay and conditions which – when registered by the Labour Court – became legally enforceable. This system was the pay-setting mechanism for sectors such as construction, electrical contracting and retail drapery in Dublin.

A revised system will be introduced and will have two separate strands.

REAs will return in a limited way: agreements within a single enterprise may be registered in a manner similar to the former system.

Sector-wide pay setting will be done by means of “registered employment orders” (REOs). These will

differ from the former system in that the Labour Court will be able to set pay even in the absence of agreement of the relevant parties.

The second change will deal specifically with the Industrial Relations Act 2001. This act provides a mechanism for trade unions to bring cases to the Labour Court on behalf of workers employed by companies who do not have a practice of collective bargaining negotiations. The Act of 2001 has not been used much since the Supreme Court’s Ryanair decision of 2007. The proposed amendments are likely to raise the profile of the act and may prompt a significant increase in litigation under its provisions.

The Workplace Relations Bill 2014 is likely to be enacted very soon. This will be the biggest reform of employment rights and industrial relations institutions ever enacted in Ireland and has been the subject of significant scrutiny and press comment. Bodies such as the Employment Appeals Tribunal and the Equality Tribunal will be subsumed into a new Workplace Relations Commission, as will all existing rights commissioners. Many of the provisions of the bill relate to institutional issues, such as who will fill the roles in the new bodies and how contentious cases will be processed. Several other aspects of the bill will have significant practical effects on employers and workers. The bill will give significant new enforcement powers to the body currently known as NERA and will introduce elements of criminal enforcement into areas of employment law which previously were subject only to civil redress.

The 2014 bill will also make some changes to substantive employment legislation, most notably by providing that annual leave will accrue during periods while employees are on sick leave. P

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The Companies Act 2014 The Companies Act 2014 is now law and planned for commencement on June 1st 2015. Paul Egan sets out the issues, spells out the changes for the limited liability company and gives some useful advice on the enactment of what is a mammoth piece of legislation

The Issues With 1,448 sections and 17 schedules, this is the largest Act to be passed in the history of the State. The questions for solicitors are what must be done, what ought to be done and what need not be done?

First, there is no immediate need for companies to do anything. However, • failure by certain companies to take particular steps immediately will deprive them of particular advantages afforded by the new law; • failure to take particular steps by the end of the 18month transition period may leave a company with inappropriate constitutional documents; • failure by a creditor (including a director) to take particular steps may prejudice the creditor.

The key change introduced by the Act is the division of the current private company limited by shares into two new types of company – the ‘LTD’ (frequently referred to in commentaries until recently as the ‘CLS’ – company limited by shares) and the ‘DAC’ – the designated activity company. Every existing private limited company will have to decide to migrate to one or other of these new form companies, while also complying with the various constitution and governance reforms that the Act introduces in respect of them.

Changes for the Ltd Many of the more progressive reforms provided for in the Act apply to the LTD. No objects clauses – farewell to ultra vires The LTD will no longer be restricted to the objects set out in its memorandum. Instead, a LTD will have “full and unlimited capacity to carry on and undertake any business or activity, do any act or enter into any transaction” and “full rights, powers and privileges” to do so.

Single director companies While the minimum number of directors for all other companies will continue to be two, the LTD will be permitted to have a single director. However, a single director cannot be the company secretary.

Dispensing with AGMs While a single-member, private limited company can currently dispense with the holding of an AGM, the Act permits a LTD with more than one member to do so also.

Majority written resolutions A written resolution can currently only be passed where the resolution is unanimous and signed by all of the members entitled to vote. The Act contains a useful new procedure by which a company may pass a resolution in writing where it is signed by the “requisite majority of members.” This automatically applies to a LTD and is optional for other company types.

The single-document constitution A LTD will have a single-document instead of a two document memorandum and articles of association.

The new form constitution is principally a consequence of the removal of the obligation to set out objects in a memorandum of association.

Changes for all Companies There are many reforms that apply to all company types (including the LTD and DAC) and include: Directors’ Duties The Act, for the first time in Irish company law, codifies the fiduciary duties of a director of an Irish company.

Registered Person Although strictly speaking it is existing law, the Act provides for a more straightforward method of registering individuals authorised to bind the company, by registering their authorisation in the Companies Registration Office.

Therefore, in the case of a LTD with a registered person, transactions with banks and financiers become far easier: no ultra vires and no questioning the registered person’s authority.

Company Secretary The directors have a duty to ensure that the person appointed as secretary has the skills necessary to enable them maintain (or procure the maintenance of) the

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Spring 2015 dsba.ie Paul Egan is a partner in Mason Hayes & Curran practising in company law. He has been a member of the Company Law Review Group since its establishment in 2000

records (other than accounting records) required to be kept under the Companies Act. Compliance Statements Directors of PLCs (except investment companies) and all other large limited companies having both a balance sheet total of €12,500,000 and a turnover of €25,000,000 must produce an annual compliance statement. This statement is to acknowledge that they are responsible for securing the company’s compliance with tax law and company law and confirming that certain things have been done or, if they have not been done, explaining why they have not been done.

Loans to and by Directors The prohibition on loans to directors is relaxed, subject to compliance with new formalities. Importantly also, loans by directors must comply with new formalities, in the absence of which the loans may be deemed subordinated or even a gift to the company.

Abolition of Table A Table A of the first schedule to the Companies Act 1963 contains a melange of optional and compulsory governance provisions for companies limited by shares.

Table A is no more, with the optional provisions appearing in their legal context in the body of the Act. These optional rules in the body of the Act will apply to each company unless explicitly stated otherwise in the company’s constitution.

Summary approval procedure The Act also introduces a simplified written approval process by directors and/or members, not requiring any court order, for certain transactions including financial assistance, certain transactions with directors, a reduction in capital, a members’ voluntary winding-up or the use of pre-acquisition profits. This procedure is available to private limited companies, designated activity companies, companies limited by guarantee and unlimited companies.

Financial Assistance The law has been relaxed so that only financial assistance for the primary purpose of funding a share acquisition is prohibited. The existing exceptions also continue and the summary approval procedure can be used by companies other than PLCs to permit it.

Action What choices do companies have?

The principal question for private companies will now be “to DAC or not to DAC”. A DAC is similar to an existing private company limited by shares and will remain restricted by its objects clause and its constitution. An LTD is a simplified new-form private company limited by shares enjoying the ability to have one director, to avoid the AGM etc. as outlined above.

A company can become a DAC: • by passing an ordinary resolution no later than August 31st 2016 (section 63); • by passing a special resolution after that date (part 20).

A company becomes an LTD • automatically on December 1st 2016 if it does nothing

Company Law

Loans by directors must comply with new formalities, in the absence of which the loans may be deemed subordinated or even a gift to the company

during before December 1st 2016 (section 61) • before that date the Registrar of Companies issues a certificate of registration following: – the company passing and filing a special resolution to do so (section 59); or – the directors delivering a constitution that complied with the Act to the Companies Registration Office (section 60).

What must companies do?

The directors of any private limited company (that does not re-register as another form of company) that will be becoming a LTD, are obliged to deliver a new constitution of the company to each member and to the Companies Registration Office, that conforms with the new Act (section 60).

Where a company does not do this, its existing memorandum and articles will be interpreted as its constitution, with the exception of the objects clause and any provision that provides for or prohibits the alteration of its articles.

What ought companies do?

Each company should consider its particular circumstances. For example, if becoming a one-director company is important to a company, that company will want to re-register as a LTD. Alternatively, a joint venture company for a specific narrow purpose may want to ensure that it becomes a DAC so there is no ambiguity about its objectives.

What other steps should be taken?

Where a director has lent money to his or her company, the loan should be documented in writing. Where it is not, then it is deemed to be a gift to the company.

Where there is any ambiguity in the drafting, the loan may be considered to be interest-free or unsecured and subordinated. (section 237) At present a statutory demand may be made of a company for a debt of €1,269.74, failure to pay which can be evidence of the company being unable to pay its debts. That sum increases to €10,000 on June 1st, so creditors owed amounts under €10,000 and more than €1,269.74 may want to take steps now to seek to recover payment by statutory demand.

Generally In the space available, this is necessarily a helicopter view of an enormous enactment. For all of us it will be an exciting adventure. And even though the law is complex, it is good news for our clients as many business transactions will be less weighed down by unnecessary procedures. P the Parchment 15

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Landlord & Tenant

The €7.36M Question Upward Only Rent Review Supreme Court Outcome

In each case, she concluded that the meaning was clear, namely that the preceding period was the period which ended at the review date, not the first rent period

Clarity On July 1st 2014 the Supreme Court confirmed that an upward only rent review clause in a 35-year lease dating from 1987 meant that the lease rent would never reduce, regardless of what happened with market rents. While each individual matter of interpretation has to be based on its particular facts, this decision will be warmly welcomed by landlords, investors and their funders. Conversely, tenants and their funders will be very disappointed.

The true meaning of a lease is determined by the courts if the parties cannot reach an agreed position or a settlement of their disagreement. The Supreme Court is Ireland’s final court of appeal and therefore its judgements are particularly important. The case arose out of a dispute between the tenant, the iconic Bewley’s Café on Dublin’s Grafton Street and its landlord, Ickendel Limited.

Context Traditionally, most long-term commercial leases in Ireland were for 25 years or 35 years, with full repairing and insuring obligations on the tenant and a rent which was reviewed every five years, but on an upward-only basis. Real estate values in Ireland had increased substantially in the years leading up to 2009 and then fell precipitously. When the Bewley’s rent was reviewed in 2007 it was set at €1,463,964. By 2012, the market rent was €728,187.50, a reduction of 50.3% on the 2007 rent. The difference between those two rent levels for the 10 years from 2012 to the end of the lease in 2022 is €7.36m, a substantial sum both for the tenant and for the landlord. This calculation assumes that the market rent does not exceed the 2007 lease rent of €1,463,964 by the final review date in 2017.

Dispute The case turned on the precise construction of the words used in the rent review clause. Bewley’s argued that the terms of its rent review clause meant that the floor on a rent review was the original 1987 rent. The landlord countered that the correct interpretation was that the floor should be the rent payable before the review. In March 2013 in the High Court, Bewley’s was successful and the result was a rent reset at market levels in 2012 (as the original rent had been €232,410). Ickendel appealed and the Supreme Court

issued its unanimous judgement last summer, July 1st, 2014.

Approach Judge Mary Laffoy is arguably the leading real estate lawyer in the country. It is noteworthy that she delivered the judgement of the court. Judge Laffoy noted that the parties were in agreement on the applicable law, but differed as to its application to the particular facts. Judges are obliged to gives contracts (including leases) the meaning the parties have indicated through the language the parties have used, rather than substituting a meaning which the parties might have used if they had given the matter more thought or had more foresight as to possible future events.

Upward Only or Market?

The High Court judge had concluded that the product of the rent review provisions was a market rent. The Supreme Court decided that this was a misunderstanding of how the rent review provisions operated in practice, so that the lease provided for upward-only reviews rather than market reviews. In a previous decision in 1995, the Supreme Court had decided that subsequent factors, such as unexpected economic events, could not influence the court’s approach to interpretation. At the hearing of the |appeal, both sides agreed that if the lease provisions were unambiguous, then these provisions applied regardless of whether these were uncommercial.

Decision Judge Laffoy considered the words at issue in the overall context of the lease and analysed in detail each occasion on which the phrase “the preceding period” was used. In each case, she concluded that the meaning was clear, namely that the preceding period was the period which ended at the review date, not the first rent period. There was no need to use a word such as “immediately” before the phrase for the meaning of the phrase to be clear. While she commented that there were some elements of the lease which were specific to the circumstances, much of the rent review process was “articulated in conventional terms”. The rent was to be reviewed on an upward-only basis and this was “what the parties bargained for in plain language.” P DSBA Property Committee

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Muriel’s Wedding

When Muriel Walls turned 50, she had three grown up children, was a partner in one of the largest firms in the country and was recognised as a leading practitioner in family law. So what did she do? She came out. Since then, her career, personal life and general well-being has gone from strength to strength, but she wants more. Not much; just the right to marry her long-term partner, Rosemarie. Stuart Gilhooly meets the feisty, determined, but very humble campaigner

E

quality. Ask 99% of people and they will tell you it’s a fundamental right and they believe in it wholeheartedly. Until you take it out of the abstract and start asking specific questions. Then the mask slips a little. Like George Orwell in Animal Farm, many of us seem to believe that we are all equal, it’s just some are more equal than others. A la carte equality, if you like.

The next two months will see wall-towall (no pun intended) debate on the rights and wrongs of same sex marriage which will inevitably be interlinked with the rights of gay couples to adopt children.

Muriel Walls has already fought her hardest battle and won. The internal war which raged, unseen by anyone, but which left casualties that even she couldn’t see. Fifty became a milestone and a time to be true to herself. Her marriage was long over but the truth had to be told and Muriel wanted to

Things happen in life that make you make decisions and I thought if I can’t do something at 50 when I was pretty well established in my career at McCann Fitzgerald, then I’ll never do it

stop leading a double life and be more real.

“It’s a personal journey. I’m 60 now.

Things happen in life that make you make decisions and I thought if I can’t do something at 50 when I was pretty well established in my career at McCann Fitzgerald, then I’ll never do it. I didn’t think if I came out with an announcement that people were not going to speak to me anymore or no client would ever pass my threshold, which would be a worry that the younger generation might have.

“I thought, I can’t be leading a dual life.

I couldn’t have a double life by not being able to say what I did at the weekend.

Some people do, but I think it’s a huge pressure, it’s toxic almost, to have to compartmentalise your life for fear that somehow it might impact on your career.

“It’s only when you do something yourself, you see that other people have followed the same journey. I suppose people do say

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Spring 2015 dsba.ie Stuart Gilhooly is a partner at HJ Ward & Co Solicitors and former president of the DSBA

Cross Examination

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‘how did you get to 50 and not know?’ but I talk to friends in similar situations and maybe their parents died or they reached a certain milestone. That can be the trigger sometimes.”

It was far from plain sailing and although you can see she is downplaying it, the hurt of the experience is still tangible. Telling her children was, not surprisingly, the hardest.

“There are an awful lot of books written about parents coping with their children coming out to them. I could find no book in the whole world about a parent coming out to their children.

“It was difficult for them but my son, who is my eldest, got it straight away and was very supportive. As were the other two.”

The support came not just from her immediate family but she was overwhelmed by the positive reaction of work colleagues, golfing friends and her social circle. It helped her recover from the fallout of her marriage breakdown and the realisation from others that it must have been a factor.

“I was married at 19 and we had a lot of good years together, but I was conscious that I was the one causing a lot of pain to people and I hadn’t done that in my life – hurting people. I was the fixer and the minder so it was difficult to be the one causing the tears.”

That was then, this is now. She has moved on and is very comfortable in her life with her partner Rosemarie, their two dogs and two cats. The kids are all in their thirties now and have their own families and partners. She entered into a civil partnership with Rosemarie in 2011 but like most people in that situation, she wants more; what the rest of the population has – a right to marry.

“We were quick off the block [with civil partnership]. We would like to have got married sooner rather than later.

“I think it would be a huge disappointment to a lot of people if the referendum doesn’t pass and not just gay and lesbian people. What message would it send out to the world? It would be a very powerful message if it passes because we would be the first country in the world to have voted for it. What a powerful message for a 21st century Ireland; that we are in favour of equality and inclusion.”

Muriel has been fortunate to date that she hasn’t experienced the discrimination which still appears to pervade certain parts of Irish society, but she has seen it at close quarters.

“When anyone is discriminated against, it hurts. I haven’t experienced it but I do have friends in the educational sphere who are more circumspect. I have a friend in that area who didn’t come to our civil partnership because she thought the risk was too high.

“I’m alive to discrimination against other people but maybe I’m too bolshy and they wouldn’t say it to me.”

Of course, not being allowed to marry

is blanket discrimination against all those who wish to marry someone of the same sex, albeit one that is enshrined in our constitution. Although she passionately believes in the cause, she knows there is no room for complacency and has her arguments ready for the naysayers.

“The fundamental dismantling point is that there are a lot of people getting married after divorce in their 50s and 60s. What is the status of their marriage? It’s obviously got nothing to do with children, but they felt very strongly that they should get married and this was happiness second time around for them both.

and they are assessed as a family (it’s not as if the other person is hiding in a shed at the back of the garden) but one of them is the adopter and the other is legally a nobody, which makes no sense either.”

The No campaign continuously argues that having a mother and father is the “ideal” and that is what we should strive for. Muriel pours cold water on this notion with a clinically simple, legal argument.

“If we use the phrase ‘the best interests of the child’, as we do all the time, then adoption can’t be harmful to children.

“Finding the best parents in those individual circumstances, for that particular child,

It would be a very powerful message if it passes because we would be the first country in the world to have voted for it “There were 24,000 marriages last year in Ireland and they [heterosexual unions] will always be the majority and, of course, most will have families. Why are they worried about these [same sex] marriages? Hand on my heart, five or six years down the road, is this going to stop heterosexual people getting married? Absolutely not. Are they going to feel diminished in any way? I don’t think so.”

If arguments against same sex marriage in itself appear simplistic and somewhat old fashioned to many of us, it is the introduction of the heart string puller that really throws the cat among the pigeons.

What about the children?

Of course, the issue of same sex adoption is being legislated for by the Children and Family Relationships Bill and will be passed well in advance of the referendum. It won’t stop the waters being muddied though and the arguments about the right to marriage being intertwined with a vitriolic debate on gay adoption.

Muriel believes the whole issue is completely overblown.

“At the moment, quite a lot of gay people are fostering. If we had adoption available for them, those foster parents are ideal. I think it’s grotesque that you would allow a child to be fostered, nurtured and get over whatever initial difficulties the child had and then these two people can’t adopt you.

“As well as that, the adoption numbers are very small. Up to 116 domestic adoptions took place last year and something like 86 were step family adoptions. The numbers we are talking about are tiny, as are the number of foreign adoptions.

“Also, single people can adopt, so one half of a lesbian couple, for instance, can adopt

should be the test. I get so frustrated because ‘best interests’ is the standard we use, but only when it produces the result we want.”

Although the influence of the Catholic Church has now waned to such extent where it could legitimately be argued that their opposition to the referendum could be a help to the Yes campaign in many areas, it would be foolish to believe that their words have no effect.

“I know the priests have said two men can never deal with the feminine needs of a daughter, but I would have thought that was an insult to every father in the country. What sort of family life are the bishops talking about? Is it 50 years ago?

“Because 50 years ago, 2% of children were born outside marriage but now we have 36.5%. The absolute connection between children and marriage is gone.”

Of course, Muriel Walls isn’t defined by her sexuality or campaigning for gay rights and would hate to be seen that way.

Long before she ever felt the need to stick her head above the parapet and support her LGBT colleagues, she was, and still is, regarded as one of Ireland’s leading family lawyers. If her erstwhile colleague and friend, Alan Shatter, was the father of family law in Ireland, she was its favourite aunt.

She found her way to the top of the family law tree by a fairly traditional route. Born in Rathmines, school was Loreto-on-theGreen, college was law in UCD and her early career was spent hopping between firms in Limerick and Dublin before finally settling down in McCann Fitzgerald.

In those early years, the presence of Alan Shatter was never far away. She succeeded him as chairperson of FLAC in 1976 and

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Spring 2015 dsba.ie

Cross Examination

Photography: Paul Sherwood

spent a short period working with him in Gallagher Shatter before heading to McCanns.

The regard is clearly mutual and he appointed her chair of the Legal Aid Board in 2011, a position that needed her experience and knowledge as the waiting lists get longer and longer.

“Our biggest challenge is the waiting list. We have a budget and over the last five or six years more and more people have become entitled to legal aid because their circumstances have changed, so as a percentage, over 50% of the population meet the eligibility criteria. Other jurisdictions have a demand-led budget, so if they need legal aid, they get it.”

Most people seek an easier life as they hit middle age and their later years but Muriel Walls has chosen a different path. More upheaval, new challenges and why not set up a new firm in her spare time?

After 27 years in McCanns, the writing was on the wall. Not large enough to read it yet, but it was there and soon she wouldn’t need glasses.

“It’s no secret that retirement age in McCanns is 62 so when I got to 58, it was in the frame. I’m not great at taking my foot off the pedal, so I thought I don’t want to stop at 62. I could have waited but I said to Graham Toomey, my senior associate at the time: ‘Do you want to do this?’ and he said yeah, so since 2013, we are Walls and Toomey.”

Running a busy family law practice and chairing the Legal Aid Board would be enough to be getting on with for most people, but Muriel Walls has other projects.

When the referendum is over, she has another bugbear that needs to be slain. The four-year waiting period before divorce.

“People are in the legal system for far too long. Reducing it would require constitutional change but it needs to be done.”

Watching this tour de force sitting before me in her boardroom which overlooks her alma mater, Loreto, I wonder why, with her stellar CV, the bench didn’t beckon. She seems to tick all the boxes.

“I’ve no interest in being a judge. I think you have to be very honest about the type of person who should be a judge and I don’t think I’d be very good. It’s quite a passive role. I think I’d be quite cranky, quite quickly. I also have a quite serious disability in that I have a hearing problem. I wear two hearing aids and for me to be on the bench and struggling to hear what people are saying would be a problem. I also like to have the flexibility to go away or play a game of golf when I want. I don’t think I’d like to be in the strait jacket of a very demanding job where I couldn’t take a day off.”

The last ten years have clearly changed Muriel Wall’s outlook on life. After coming to terms with her sexuality, her searing honesty is all-consuming. It’s hard not be taken in by the softly spoken but steely and determined manner. She is a poster girl for the Yes campaign. A highly intelligent, accomplished woman who has been there, done that and bought all the t-shirts, for the whole family.

And don’t bet against a wedding this side of Christmas. I’m buying my hat. P the Parchment 21

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The New Civil Court of Appeal Chair of the DSBA Litigation committee Joe O’Malley takes a closer look at the new civil appeals regime and highlights some of the significant changes in the appellate structure of the Irish superior courts

T

he 28th of October 2014 was an important milestone in Irish jurisprudence, being the date that the new Court of Appeal came into existence and the first time since 1937 that a new court, expressly provided for in the Constitution, was established in Ireland. On the same day, important changes to the jurisdiction of the Supreme Court came into effect.

Background Following the report of a working group in 2009, the Government proposed a constitutional amendment to establish an intermediate appellate court and this amendment being the 33rd amendment to the Constitution, was passed by referendum on October 4th 2013 amending Article 34 by providing that the courts would now include a Court of Appeal.

The general right of appeal to the Supreme Court has disappeared and is replaced with a general right of appeal to the Court of Appeal. There are now two types of appeal to the Supreme Court, namely, appeals from the Court of Appeal and ‘leapfrog’ appeals directly from the High Court. In both of these cases, the leave of the Supreme Court is required and save where the Supreme Court grants leave for a further appeal, the decision of the Court of Appeal is final and conclusive.

The case for the establishment of this new court is unchallengeable. In the main, the number of High Court judges increased significantly in recent times to cope with increased litigation at that level, whereas there was no corresponding increase in relation to the only appellate court for civil cases. For example, in 1968 there were seven High Courts serviced by way of appeals by one Supreme Court. In 2013, there were 36 High Courts again feeding into one Supreme Court which could, on occasion, sit in two divisions.

This situation inevitably created a bottleneck in the

Irish courts system whereby the Supreme Court simply did not have the capacity to process promptly the volume of civil cases appealed from the High Court.

This delay not only hindered efficient and effective administration of justice but also rendered Ireland a less attractive location for establishment and doing business where disputes could be tied up on appeal for more than four years. It also exposed Ireland to liability for damages under the jurisprudence of both the European Court of Justice and the European Court of Human Rights and had an effect on the State’s international obligations.

The need for such reform was even more compelling when one considered that Ireland consistently ranked amongst the higher positioned nations in terms of its respect for judicial independence and observance of the rule of law which are key indicators of a State’s competitiveness. The Commercial Court was established with a view to benefiting commerce in the State by accommodating the commercial needs of modern business and it has undoubtedly proved to be a great success and has established itself as a court of importance in Irish commercial life. However, these plaudits were capable of being frustrated or set at nought in circumstances where such disputes were held up inordinately on appeal.

The case for reform also identified a critically low level of judges per capita in Ireland. Surprisingly, Ireland with a population similar to Norway has approximately one fifth of the judges per capita appointed in Norway. On top of that, we have a relatively low utilisation of alternative dispute resolution compared with our European counterparts.

However, addressing the problems of access to and efficient administration of justice is not simply a question of increasing the number of judges.

Therefore, the new Court of Appeal regime also heralded important changes in relation to case management.

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Spring 2015 dsba.ie Joe O’Malley is a partner at Hayes solicitor and he is also chairman of the DSBA Litigation committee and council member of the DSBA

Litigation

Judge Sean Ryan, President of the new Court of Appeal speaking at a recent DSBA seminar

Case Management Civil procedure in the Court of Appeal is now governed by a newly substituted Order 86A of the rules for the superior courts. The rules of both the Court of Appeal and the Supreme Court now require that appeals be prepared, heard and determined in a manner which is just, expeditious and likely to minimise costs. This wording echoes the wording of Order 63A governing the Commercial Court.

These objectives are achieved by a reduction in party autonomy in favour of increased court control and monitoring.

Two types of appeal are envisaged, namely, expedited appeals and ordinary appeals. Expedited appeals include appeals against a making or refusal of any interlocutory order, summary judgment, insolvency-related order or making of a determination as to the capacity of a person. Appeals which are not expedited are ordinary appeals. The important difference between the two types of appeal is that a notice of expedited appeal must be lodged in the Court of Appeal office within ten days of perfection of the order appealed against. The respondent has seven days to file a respondent’s notice in the Court of Appeal office. The Court of Appeal will issue a return date for a directions hearing, probably within two to three weeks from the date of lodgement of the notice of appeal. For ordinary appeals, a notice of appeal must be lodged in the Court of Appeal office within 28 days of the perfection of the order appealed against and the respondent has 21 days to file respondent’s notice. A return date in the range of five to six weeks is expected on this regard. Importantly, not less than four days before the director’s hearing, the appellant must lodge an index and paginated “directions

The rules of both the Court of Appeal and the Supreme Court now require that appeals be prepared, heard and determined in a manner which is just, expeditious and likely to minimise costs

booklet” containing: (a) The judgment and/or order appeal form. (b) The notice of expedited appeal or notice of appeal, as the case may be. (c) Every respondent’s notice delivered, and (d) Any other document in the appeal to which any party proposed to refer at the directions hearing.

At the directions hearing, the court may make orders fixing any issues to be determined in the appeal, consolidating the appeal with another appeal, defining the issues between the parties, allowing any party to alter or amend their notice or allowing amendment of a statement of issues and fixing the times at which written submissions must be delivered and filed.

Where grounds of appeal appear very numerous or repetitive, the court may require parties to narrow the grounds truly in dispute so as to minimise the amount of time required for the appeal hearing.

Appeal hearings in the Court of Appeal are generally heard by a division of three judges. Not later than 14 days before the hearing of an appeal, the appellant must lodge three copies of an “appeal booklet” with the registrar and serve it on the respondent(s). This booklet should contain: (a) A copy of the notice of expedited appeal or notice of appeal, as the case may be. (b) A copy of the respondent’s notice. (c) A copy of the relevant pleadings and affidavits which arose in the court below. (d) An attested copy of the order of the court below from which the appeal is made and an attested copy of any other order of the court below relevant to the appeal. (e) Where written judgment was given in the court the Parchment 23

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below containing the decision appeal form, an attested copy of the written judgment approved by the court below. (f) Where written judgment has not been given in the court below, transcript of any oral judgment of the court below concerning the matter appealed from, certified as accurate by the person responsible for preparing the transcript and authenticated by the judge of the court below. (g) The written submissions, identifying and addressing the issues arising in the appeal of each party, and (h) Copies of the documents relied upon by each party as specified in the notice of appeal and the respondent’s notice respectively.

Order 58 of the rules of the superior courts provides for practice and procedure in the Supreme Court and this has been replaced in its entirety and supplemented by a new statutory practice direction – SC16. The most important innovation is the obligation to seek the leave of the Supreme Court itself in order to bring any appeal before that court.

Application for Leave Prospective appellants have 28 days from the perfection of the order appealed against to lodge a notice of appeal in the Supreme Court office. This must specify the grounds on which leave to appeal is sought under Article 34.5.3 or as the case may be, Article 34.5.4 of the Constitution and the grounds of appeal which will be relied upon in the event that leave to appeal is granted. Within seven days of lodging the notice of appeal, the prospective appellant must serve the notice of appeal on all parties affected by the appeal.

Within 14 days of being served with a notice of appeal, the respondent must lodge a “respondent’s notice” in the Supreme Court office. This will indicate, amongst other things, whether or not the respondent opposes the application for leave to appeal and if so, set out a concise statement of the grounds on which leave to appeal is opposed. Any respondent wishing to issue a cross appeal seeking to vary the order of the court below must issue a notice of appeal seeking leave to cross appeal. Within seven days of lodging the notice of appeal, the applicant for leave must also lodge with the Supreme Court office, four copies of the application, the respondent’s notice (if any), four copies of the order appealed against and four approved copies of the judgment and final orders of the court below and certificate of service of the notice of appeal on the respondent.

It is expected that leave applications will be determined in writing without an oral hearing, although the Supreme Court may direct an oral hearing if it considers it to be appropriate.

The test for whether leave should be granted is that the Supreme Court must be satisfied that the appeal involves a matter of general public importance and that it is in the interests of justice and necessary that there be an appeal to the Supreme Court. Clearly, we will need to wait and see how this test is applied in practice.

The Supreme Court may grant leave to appeal on some or all of the grounds applied for and where leave is granted on only some of the grounds, the appeal

will be confined to those issues. Within 28 days of the grant of leave, the appellant must lodge either notice of intention to proceed or else notice of intention to withdraw or abandon the appeal. After lodgement of the notice of intention to proceed, the appellant has two weeks to file written submissions and the respondent then has a further two weeks to file written submissions. The submissions are required to be done in accordance with paragraph 20 of practice direction SC16.

One week after receiving the respondent’s written submissions, the appellant must lodge a core book of appeal containing: 1. The order appealed against.

2. The judgement under appeal.

3. The notice of appeal.

4. The application for leave.

5. The respondent’s notice (if any).

6. The order granting leave.

7. The notice of intention to proceed.

8. Submissions of the appellant/moving parties.

9. Submissions of the respondent.

The registrar of the Supreme Court will then list the appeal for a directions hearing, normally six weeks after lodgement of the notice of intention to proceed.

Within 12 weeks of the lodgement of the notice of appeal, the appellant must lodge appeal books which will contain the core book of appeal (as referred to above), the book of pleadings, including affidavits relating to proceedings in the court below, a book of authorities and a book of transcripts.

The Supreme Court has indicated its intention to provide time limits for oral submissions which will be set at the directions hearing and where this is done, it is also expected that the court will provide the lawyer or litigant in person with a short period at the start of their submission without interruption.

If the Supreme Court refuses leave to appeal, then the decision of the Court of Appeal rendered in the matter is final. However, where a party had sought to leapfrog an appeal from a decision of the High Court but is refused leave to do so by the Supreme Court, it is still open for that party to bring an appeal to the Court of Appeal instead, provided the Court of Appeal does not deem that application out of time. One would expect that the Court of Appeal would not consider an unsuccessful applicant for leave before the Supreme Court to be out of time where they move their application to the Court of Appeal without any delay after the Supreme Court refusal.

Conclusion The development of the new Court of Appeal and the corresponding new rules of case management which will be applied both in the new Court of Appeal and in the Supreme Court are matters of profound importance not only within the State and for the ultimate benefit of citizens, but also to maintain the internationally recognised standing of Ireland as a good place for commerce and business. Given the relatively recent experiences in the Commercial Court and its undoubted success, one must be optimistic that the laudable objectives of the new appeals regime will yield significant change for the better that will be shared by all of us as practitioners along with our clients. P

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Tribute

Maura - we salute you

L

ittle did the DSBA know in 2005, that Maura Smith’s arrival as a new employee would see her at the helm of the association’s growth and success through the following decade. Maura took up her role as administrator of the DSBA ten years ago and as we look back on her ten years of loyal and dedicated service, we thank her for the significant and considerable role she has played and her commitment to the DSBA. Former DSBA presidents have queued up to share their thoughts on Maura Smith. Stuart Gilhooly, DSBA President 2010/2011 commented: “The thing about Maura is she cares, really cares about the DSBA. Some people work in a job to earn money and go home, others own the responsibility and truly embrace the role. Maura is one of the latter. The growth of the association, its much enhanced professionalism and the respect in which it is held by its members, owes a huge amount to the contribution that Maura has made over the last 10 years.”

Current President of the Law Society Kevin O’Higgins and DSBA President 2008/2009 said: “Maura has been a rock for the DSBA. Utterly reliable, loyal, hardworking and discreet, Maura’s an excellent front-of-house person who is immediately recognisable to the membership at all events. A very safe pair of hands administering to an expanding organisation.”

Geraldine Kelly, DSBA President 2011/2012 said: “Maura is the glue that keeps the DSBA together. Each year a new president is appointed but that doesn’t faze her. She continues on serving the DSBA and its members.

Maura accepts the new president each year and does everything in her power to ensure the year runs smoothly for him or her. She is the DSBA!” John Spanner O’Malley, DSBA President 2009/2010 commented: “While presidents and councils come and go, Maura is the constant and vital contact point between the association and its members. Dare I say, she may be better known to rank and file members than some of the officers of the day. It is hard to believe it’s 10 years since she joined us to take up a (then) new role of full-time administrator.

Maura has contributed significantly to the growth and success of the DSBA during that period. The best interests of the association have always guided Maura’s contributions. Each president over those 10 years has from time to time sought Maura’s views and relied on her guidance on a widee range of matters concerning the DSBA. Her views might not always have been taken on board but her views have always been taken into consideration, as so they should be bearing in mind that she runs the day-to-day activities of the association.

Over those 10 years Maura has gained such knowledge about the association and all its working parts, that she is now the first port of call for members seeking any information about the DSBA and its activities. The range of activities has expanded over those 10 years and Maura has always risen to the challenge. Happy birthday Maura!”

John Glynn, DSBA President 2012/2013 pays tribute: “Maura Smith has been the life force in the DSBA for the last ten years. During my year as president she was always there for me. She seems to have unlimited energy to get things done. They say women can do many things at once and Maura is the epitome of this. She can work on at least 20 objectives and at the same time give you her full attention. I hope she will be with the DSBA for many years to come.”

Former DSBA President 2013/2014 Keith Walsh fondly said: “It is no exaggeration to say that Maura has been the heart and soul of the DSBA since her arrival many years ago when I was a young member. In fact it is now impossible to imagine any DSBA seminar or event without her. Like many of the DSBA members Maura is intelligent, witty and enjoys a glass of port at Christmas.

And with some persuasion she can be tempted to take a small gin and tonic but only one, mind. Maura, thanks for the memories, we love you and we ain’t seen nothing yet – the best of Maura is yet to come.”

Thank you Maura for all you do and for all you have done. We greatly appreciate your invaluable work and we wish you a very happy 10th birthday at the DSBA. P the Parchment 25

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DSBA ANNUAL CONFERENCE BERLIN

17-20TH SEPTEMBER 2015

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3 3 Nights Superior Room at the 5* Ritz Carlton Hotel 3 Gala Dinner 3 Business Session with 3 hours CPD 3 Optional Extras include guided city coach tour with guided visit to Charlottenburg Palace and guided day trip to Potsdam located 30Klms from Berlin Visit the 2015 Annual Conference link on the DSBA website www.dsba.ie to download the Booking Form

Proud supporters of the DSBA

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Tax Update Brian Broderick and Finola O’Hanlon scrutinise two recent developments – the focus by Revenue on residential lettings and unreturned rental income and agri-taxation measures introduced in the Finance Act 2014

Residential Investment Properties When LPT was first introduced in 2012, property ID numbers were issued for every residential property in the country and individual PPS numbers were assigned to these property ID numbers, so Revenue now has a database of residential properties, with each linked to the owner’s PPS number.

Before the creation of this database Revenue was relying on compiling data from a number of sources such as prior year tax returns, tenants’ claims for rent tax credits, NPPR records, etc. There was no comprehensive record of the ownership of residential property, and a landlord who rented a property and did not return the rental income might never hit Revenue’s radar. In 2015 if a taxpayer has more than one residential property, this information is readily available on Revenue’s LPT system.

Sometimes a taxpayer will use a second residential property as a holiday home but, generally, a taxpayer will live in one property and additional properties will be held as investment properties and rented.

Revenue are using the NPPR and LPT databases to raise queries with taxpayers who have more than one residential property, if rental income has not been returned to Revenue in the relevant income tax return.

Targeting rental income is not a formal Revenue project at this stage, but it is an area that is seeing increased Revenue activity.

If an audit is carried out on a taxpayer who is regarded as non-compliant and uncooperative, audit penalties of up 100% of the tax due can be applied, effectively doubling the tax bill. And the taxpayer faces publication as a tax defaulter. In addition Revenue is likely to charge interest of circa 8% per annum. If an unprompted, qualifying disclosure is made in respect of tax liabilities relating to historical years, penalties can be as low as 3-5%, and the

taxpayer can avoid publication. It follows that clients should consider approaching Revenue to return untaxed rental income, rather than waiting for Revenue to raise the issue.

Agri-Taxation Update Stamp Duty Prior to the Finance Act 2014 the main stamp duty relief available to farmers was the relief for young trained farmers. This provides full stamp duty relief where the relevant conditions are met and this relief continues to apply to transfers made up until December 31st 2015.

The Finance Act 2014 introduced a further stamp duty relief (similar to consanguinity relief) for 2015 (and 2016 to 2018 if the transferor is aged 66 or under) reducing the stamp duty by 50% if the transferee is actively using the farm. He needs to: a) Be a trained farmer (who holds a ‘green cert’ or will obtain one within four years) who farms the land on a commercial basis with a view to the realisation of profits for at least six years after the transfer. b) Be an active farmer who farms the land on a commercial basis with a view to the realisation of profits for at least six years after the transfer, or c) Lease the land to a trained farmer or an active farmer who farms the land on a commercial basis with a view to the realisation of profits for the six-year period.

This act also introduced a stamp duty exemption for leases with a term of between six and 35 years where land is used by a trained farmer or an active farmer who farms the land on a commercial basis with a view to the realisation of profits.

The active farmer concept first arose when young

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Spring 2015 dsba.ie Brian Broderick and Finola O’Hanlon are tax practitioners at O’Hanlon Tax Ltd

trained farmers’ relief from stamp duty was introduced in 1994 and Revenue has issued some guidance on who will be treated as an active farmer.

CAT Agricultural Relief Finance Act 2014 introduced an activity requirement for agricultural relief, to encourage beneficiaries to ensure that the land is actively farmed. For gifts or inheritances taken on or after January 1st 2015, in order to qualify as a farmer for CAT relief purposes, the beneficiary will need to meet two tests: the existing financial 80% test and an activity test. To pass the activity test he must meet one of the three activity tests outlined above, that is: (a) Have a trained farmer qualification, and farm on a commercial basis for six years from the valuation date. (b) Be an active farmer farming the land on a commercial basis for six years after the valuation date, or (c) Lease the land to a trained or active farmer who farms the land on a commercial basis for six years from the valuation date.

If the trained farmer qualification is not held at the date of the benefit, but the qualification is acquired within four years of the date of the benefit, that will be sufficient for relief. It is not currently clear if Revenue will require that the CAT is paid upfront in such cases, on the basis that it will be reimbursed later if the beneficiary obtains the qualification.

A lease must cover the whole (or substantially the whole) of the agricultural property, but Revenue has indicated that they will accept that retention of the farmhouse as a family residence (when land is leased), or the retention of some plant, machinery or livestock will not preclude relief, if land which is substantially the whole of the benefit is leased.

Taxation

Active Farmer and Normal Working Time The statutory test provides that an active farmer (for the purposes of both the new stamp duty relief and the agricultural relief changes) is a farmer who spends at least 50% of his “normal working time” actually farming the relevant land.

Revenue has indicated that they will accept that “normal working time” (including on farm and off farm working time) approximates to 40 hours per week and that farmers with off farm employment will qualify for the relief if they spend a minimum of 20 hours working on the farm each week, averaged over a year. It follows that once an individual works an average of at least 20 hours on the farm each week, he is be considered to be an active farmer, even if is spending more hours (say 25) on nonfarming activity such as an employment.

Revenue Guidance Revenue has issued guidance in relation to the new legislation and they indicate that: “If a farmer can show that his or her “normal working time” is somewhat less than 40 hours a week, then the 50% requirement will be applied to the actual hours worked ..subject to being able to show that the farm is farmed on a commercial basis and with a view to the realization of profits”.

Revenue accepts that certain activities are not time intensive and confirm that:“..if it can be shown that, on an ongoing basis, certain farming activities, e.g. farming involving the occupation of woodlands on a commercial basis, are carried out on a commercial basis and with a view to the realisation of profits, but do not require 50% of normal working time/20 hours per week to be spent on such farming activities, Revenue will take this into consideration in deciding whether the relief is due”.

The statutory test provides that an active farmer (for the purposes of both the new stamp duty relief and the agricultural relief changes) is a farmer who spends at least 50% of his “normal working time” farming the relevant land

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Recent CSO statistics indicate that despite tax policies which encourage the transfer of farms to younger farmers, the age profile of farmers in Ireland has been rising

They have confirmed that if the beneficiary farms agricultural property as an active farmer, and then decides to lease it, relief will not be withdrawn provided that the lease and the lessee satisfy the conditions of the relief.

Conversely, if a beneficiary who previously leasesd the land decides to farm the property as an active farmer, relief will not be withdrawn.

Revenue have confirmed that they will accept that relief is available where a lease is to a partnership, or to a company whose main shareholder and working director farms the land on behalf of the company. Where land is leased to a company that is owned equally by an individual and that individual’s spouse or civil partner, and at least one of them satisfies the working director and the farming requirements, the reliefs will apply. The agricultural property may be leased to a number of lessees as long as each lease and lessee satisfies the conditions of the relief.

Revenue have also indicated that: • A farmer may make a loss in any year and that in of itself will not result in relief being refused or withdrawn.

However, the circumstances would need to be reviewed if the loss is being made continuously year on year.

• Single farm payments will be included as farming income in the computation of profit or losses in the usual way.

• Revenue will be flexible in relation to when farming commences and will accept that the six-year clawback period will commence from the earliest time that agricultural property is first farmed, whether by the beneficiary or a lessee (the legislation indicates that the six-year period starts on the valuation date).

• If a beneficiary cannot meet the active farmer requirements immediately because of existing work commitments or other personal circumstances, the relief will not be refused where the other requirements of the relief have been fulfilled.

Revenue have provided examples indicating that relief will not be refused if the beneficiary: • Has existing work commitments that may take time to complete.

• Is living and working abroad.

• Is a full-time student whose studies are not completed.

It is not clear what length of time Revenue will give in such scenarios for a beneficiary to meet the requirements of the relief.

The Future of Farming Recent CSO statistics indicate that despite tax policies which encourage the transfer of farms to younger farmers, the age profile of farmers in Ireland has been rising.

In the last year surveyed (2010) the average age of Irish famers was 54 and more than half (51.4%) of all farm holders were 55 or older (an increase from 39.5% in 2000). In the same period the number of farmers under 35 years of age halved, dropping to 6.2% of Irish farmers.

The changes brought about by the Finance Act 2014 switched focus from the existing policy of encouraging the transfer of farms from one generation to the next, to encouraging those who own farmland to ensure that it is in use for farming, either by farming it themselves or leasing it to active farmers. P

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I Negotiate Settlements With Banks

Finnan Financial Limited is authorised by the Central Bank of Ireland

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Professional Indemnity Insurance Specialists

Email: solicitors@oli.ie Website www.olearyinsurances.ie n

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O’Leary Insurances Ltd., Lough Mahon House, Blackrock, Cork.

Tel: 021 4536800, Fax: 021 4536801 O’Leary Insurances (Dublin) Ltd., 16 Pembroke Road, Dublin 4.

Tel: 01 6608211, Fax: 01 6608349 O’Leary Insurances (Galway) Ltd., 13 Liosban Business Park, Tuam Road, Galway.

Tel: 091 778677, Fax: 091 778680 O’Leary Insurances (Waterford) Ltd., 96 The Quay, Waterford.

Tel: 051 309130, Fax: 051 849066

O’Leary Insurances Ltd. is regulated by the Central Bank of Ireland. O’Leary Insurances (Dublin) Ltd. is regulated by the Central Bank of Ireland. O’Leary Insurances (Galway) Ltd. is regulated by the Central Bank of Ireland. O’Leary Insurances (Waterford) Ltd. is regulated by the Central Bank of Ireland.

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Professional Indemnity Insurance Renewal 2014/2015 – the Experience

David Rowe casts his eye over the professional indemnity insurance renewal process and gives an overview as to the current state of play

W

hile final figures for the 2014/2015 renewal will not be available for a number of weeks, the indications are that the total premium pot will come in at about €22m, very close to the

previous year.

The 2014/2015 renewal had a number of interesting features which led to a very stable market: • For the first time in many years the market participants were virtually unchanged, all major insurers that participated in the previous year were in the market again with a similar appetite. All of the insurers offered the short form renewal option with the standard uniform PII proposal form becoming more complex and more difficult to complete.

• The trend of using the short renewal form accelerated, with three out of four firms that we worked with not filling in the common proposal form.

• A very high percentage of the profession, possibly as high as 90%, renewed with the same insurer on broadly similar terms. Most insurers were offering a similar premium and allowing the firm a 10% increase in fee income without penalty.

• The market started earlier and was shorter than in previous years.

• Heavy penalties in terms of renewal premia were

•

•

•

•

again in evidence for those with claims and those with poor risk management processes. On a positive note, firms that could demonstrate post loss corrective actions and continuous improvement in risk management where they had claims in the past ten years, saw themselves move beyond a negative rating with the insurers.

Claims continue to fall during the year, and firms who take steps to mitigate against claims occurring are best placed. It is fair to say that the notification of circumstances has seen a steady flow, in line with previous years. However, the number of cases where potential quantum could reach policy limit levels has most probably eased off.

While the bulk of the profession opted to stay with their current insurer, there was some movement towards perceived higher quality insurers, but this movement was of a low quantum.

The profession was aware of the effect of the continuity of cover clause, this becomes more valuable as years progress and would indicate that the market trend of sticking with their current insurer is likely to continue.

Completion of the longer “common proposal form” was necessary for firms with legacy issues and where these firms were able to demonstrate an improving claims trend and adherence to good risk

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Spring 2015 dsba.ie David Rowe is managing director of Outsource, business advisors to Irish Law firms. His article was based on market research, his own experience of the market and assistance from the O’Leary Insurance Group

management practices, discounts of between 15 and 20% were often achieved.

• Paying 1% to 3% of annual fee income continues to be the benchmark for well managed firms, depending on size and work mix.

The ‘boom and bust’ cycle in 2008-2011 resulted in significant losses for many of the insurers that were underwriting law firms in the Irish jurisdiction with many of these losses exceeding the minimum level of cover. In 2009, the minimum level of cover was reduced from €2.5m to €1.5m which was necessary to ensure continued support of the insurance market to provide cover to the profession, not because there was no longer exposure to claims that could cost in excess of €1.5m. The majority of insurers competing in the market elected to cap their exposure at the €1.5m minimum level cover, meaning that firms requiring higher limits had to secure this through alternative insurers and this looks set to be the modus operandi for the foreseeable future.

The experience on the placement of top-up cover in December 2012, 2013 and 2014 was similar to the primary €1.5m with the emergence of fresh capacity in the local and Lloyds market. As a result, the cost of this cover for particular firms has reduced significantly over the past 2/3 renewal cycles. As one would expect, premiums are linked to fee income and cover is available from as little as €1,000 plus 5% Govt levy.

As areas of the economy begin to experience ‘green shoots’ by way of fresh investment, the need to provide evidence of higher limits of PII limits of indemnity will most likely become a common feature for certain areas of the profession in 2015. Given the fact that the topup market is in a “buyers” space, there are a number of

Insurance

good reasons that law firms around the country may consider 2015 as being the right time to increase their annual PII cover as set out below:

Where these firms were able to demonstrate an improving claims trend and adherence to good risk management practices, discounts of between 15 and 20 % were often achieved

1. Increase your limit of indemnity and protection when it is most affordable.

2. Cover is provided without a retroactive date so crucially it will cover all past work – not just work taken on since date of uplift in cover.

3. Introduce the practice to other insurers – this may be worthwhile when next renewal (Dec 1st) arrives and you wish to explore the market. The familiarity of trading with an insurer can have its benefits as a relationship will exist that may be beneficial.

The overall conclusion is that this was a relatively straightforward renewal for those with good claims records and good risk management procedures. The insurers saw very high retention rates from their existing book of business, where they wanted the firm to renew with them. All firms were successful in getting insurance.

With increased conveyancing and other transactional volumes, we are now moving into a different phase and insurance markets are cyclical. It is quite possible that we have reached the bottom of this cycle and as the activity levels in the traditional risk area of property transactions increase, it will pay firms handsomely to stick to the quality control gained through the process of putting the standard in place and having outside verification of it through an independent audit. Going back to where we were is unthinkable; we must maintain the improved process and standards. P the Parchment 33

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Act of Charity Charity Law Update – Regulation of Charities and the impact of new Companies legislation

The long-awaited commencement of the Charities Act 2009 (the “Charities Act”) has finally arrived and 2015 promises to be a year of upheaval for charities, and progress towards attaining full transparency and accountability in the charities sector. Cormac Brennan and Carol Hogan assess the charity landscape

T

he Charities Regulatory Authority (the “CRA”) was established on October 16th 2014 under the Charities Act. This new authority is an independent agency of the Department of Justice and Equality and is charged with increasing public trust and confidence in charitable organisations.

The CRA has a range of statutory functions. These will be introduced incrementally, starting with the compilation and registration of all charities operating in Ireland. All charities operating in Ireland must now be registered on the Register of Charities. Those charities with a valid tax exemption (CHY number) will be automatically registered with the CRA. However, if a charity does not have a CHY number they must apply to the CRA to be registered.

Charities will be required to provide information on their activities and how they are funded. This information will be available to the public in line with the CRA’s duty to increase transparency and confidence in the sector.

New Registration Obligations The Register of Charities is in place and can be viewed on the website of the Charities Regulatory Authority (www.charitiesregulatoryauthority.ie). Entries on the register are not yet complete and the CRA will be adding to the information available on the register in the months ahead. The CRA is writing to all charitable organisations that are deemed registered in order to obtain certain information to complete the registration process.

Charities operating in Ireland that do not have a CHY number, including those foreign charities having a DCHY number (a determination from the Irish Revenue enabling a foreign charity to avail of charitable exemptions available to Irish charities), are required to register within six months of the establishment of the CRA, therefore

by mid-April 2015. Charity trustees will need to sign a declaration form which is available for downloading on the website of the CRA. The information and documentation which charities must now provide to the CRA includes: • copies of governing instruments and details of all officers; • financial information including balance sheet date, gross income and sources, total expenditure and expenditure on salaries; • copies of financial accounts for the 12 months immediately preceding the application; • details of the charity’s purpose/objectives • details of activities, and how activities directly support the objectives of the charity, and how the public benefit test is satisfied; • details of how the charity intends to raise money; and • details of risk assessment procedures, safety checks and safeguards employed by the charitable organisation where its activities include working with vulnerable people (including the aged, children and young people, the sick and disabled).

All information set out on the Register of Charities will be accessible by the public, and there is an ongoing obligation to ensure all particulars are correctly entered and updated. All charities are obliged to state on all public literature, including on telephone or the internet, that they are registered charitable organisations, and charities may be required to provide further information as may be prescribed by regulations in due course.

Accounting and Audit All charities are required to keep proper books of account, and there are detailed provisions in the Charities Act setting out the obligations of charities to prepare

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Spring 2015 dsba.ie Cormac Brennan is a partner and Carol Hogan is a senior associate solicitor at O’Connell Brennan Solicitors

statements of accounts and to have their accounts audited. However, those provisions do not apply to charitable organisations that are incorporated under the Companies Acts.

The legal obligations of corporate charitable organisations in relation to accounting, annual returns and audit will continue to be governed by the Companies Acts, and the Registrar of Companies will provide a copy of the annual returns of incorporated charities to the CRA together with all documents annexed to the annual return. The intention here is to avoid dual reporting for corporate charities.

Subject to regulations to be issued by the CRA, charitable entities should also be aware that in relation to accounting periods ending on or after January 1st 2015 they will generally be required to apply the new FRS 102, the financial reporting standard applicable in the UK and Ireland, and also the Charities Statement of Recognised Practice (SORP) which has been updated to reflect the provisions of FRS 102.

Annual Reports All charitable organisations including those established as companies, will have an obligation to prepare and submit to the CRA an annual report in respect of their activities in that financial year. The Charities Act provides that charity trustees must submit the report no later than 10 months, or such longer period as the CRA may specify, after the end of each financial year. The content of the annual reports will be determined by regulations in due course, and it is likely that the requirements will include an activities report element and a finance reporting element.

There are likely to be distinctions made in the regulations in terms of the obligations of different classes

of charitable organisations, which may depend on the level of annual turnover. The content of the annual report will be made available to the public, and all charities will be required to provide the CRA with any other information that it may reasonably require to enable it to perform its functions.

Impact of the Companies Act 2014 for Charities The Companies Act 2014 (the “2014 Act”) is the most significant change in Irish corporate law in two generations. Given the large number of Irish charities that are companies limited by guarantee without a share capital, the boards of those charities will need to become conversant with the main issues arising.

The 2014 Act is a state of the art law applicable to companies from their formation, administration and management to their winding-up and dissolution, incorporating the rights and duties of their officers, members and creditors. From the perspective of directors of charitable companies limited by guarantee, the actions that will need to be taken during the transition period of 18 months from the commencement date should be manageable, and it is expected that existing charitable companies limited by guarantee will continue their existence within that statutory form.

Set out below is a summary of the main changes and the issues that charity trustees of Irish corporate charities will need to be aware of: • The 2014 Act is confined to company law and does not address matters in relation to the taxation or residence of companies or their directors, or the administration and regulation of charities.

• The indicative date of commencement of the 2014 Act is June 1st 2015, which will be followed by an 18

Charities Law

Charities will be required to provide information on their activities and how they are funded. This information will be available to the public in line with the CRA’s duty to increase transparency and confidence in the sector

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•

All charitable organisations, including those established as companies, will have an obligation to prepare and submit to the CRA an annual report in respect of their activities in that financial year

•

•

• •

•

• •

month transition period to allow directors to ensure compliance with the new legislation.

Companies limited by guarantee without a share capital (“CLGs”) are likely to continue to be the legal form of choice for charities.

All CLGs will now be governed by a ‘constitution’, although this will comprise of a memorandum of association and articles of association, similar to the existing position.

To all intents and purposes a CLG’s constitution will look like a memorandum and articles of association save that it will be one document and the word ‘constitution’ will appear before the start of the memorandum of association.

The memorandum of association of a CLG will contain much of the same information as that of an existing CLG. In particular, it must contain an objects clause.

Under the 2014 Act, CLGs can now have one single member (in contrast to the previous requirement to have at least seven members) although the Revenue Commissioners are unlikely to grant charitable tax exemption to charitable companies having one single member.

CLGs must, under the 2014 Act, have at least two directors. However, the Revenue Commissioners are likely to continue to apply their condition, for charitable tax exemption to be granted, that a charity have at least three independent directors.

Unless the constitutional documentation provides otherwise, the directors shall retire by rotation.

CLGs can now avail of audit exemption. However, this will not change the condition imposed by the Revenue Commissioners, in the context of granting charitable tax exemption, that the accounts of charities must be audited where the annual income exceeds €100,000. This is a lacuna in the legislation governing charitable companies, given that the new audit requirements of charities under the Charities Act do not apply to companies.

• While the 2014 Act sets out a series of statutory default provisions for the constitutions of all companies, many CLGs are likely to disapply the standard provisions and write their bespoke articles long form, as is the current practice for many charities.

• The corporate name of a CLG must end in “Company Limited by Guarantee” or “CLG”, although many charities will have liberty to dispense with having “Limited” in their name, and that this dispensation may be carried forward.

• Similarly to the other types of company under the 2014 Act, CLGs now have a duty to ensure that the person appointed company secretary “has the skills or resources necessary to discharge his or her statutory or other duties”.

• There are no changes to the obligations of multimember CLGs to hold an AGM. • It would appear that foreign charities constituted as companies and granted charitable tax exemption (DCHY numbers) whose presence constitutes a ‘place of business’ in Ireland, but not a branch, will no longer be required to file accounts in the Companies Registration Office. It remains to be seen how the Companies Registration Office will deal with this aspect.

Moving Ahead The simultaneous introduction of a modernised company law with its updated compliance obligations and the CRA with its corresponding registration and reporting obligations may seem a heavy administrative burden for entities in the charitable sector. However, the motive behind this burden of increasing public trust and confidence in charitable organisations is an important one – which most charitable organisations will support particularly in light of recent negative media commentary on the sector. P

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Corporate Transactions: Tax and Legal Issues Irish Tax Series 2015

& Amanda-Jayne Comyn (Ed), BL, Grant Thornton An invaluable guide to the Irish tax and legal issues that arise during transactions encountered by companies

Corporate Transactions: Tax and Legal Issues Finance Act 2014

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General principles – New Companies Act 2014 considered in detail

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Incorporation

>

M&As, reconstructions, reorganisations

PRINT OR E-BOOK

By Bernard Doherty, Tax Partner, Grant Thornton

Bernard Doherty Amanda-Jayne Comyn (Editor)

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Examinership, receivership and liquidation

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Worked examples and case studies Order your copy today at www.taxinstitute.ie or call Michelle at +353 1 663 1711

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1st Edition

Price: €65 (+P&P) eBook: €48 + 23% VAT Available Now 23/03/2015 11:02

23/03/2015 15:30

Information Technology

Sonia McEntee is principal at Sonia McEntee Solicitors

Sole Practitioners’ Network The Sole Practitioners’ Network (SPN) is a forum for sole practitioner solicitors to discuss issues affecting them in practice – from insurance to risk management to CPD and practice management. Sonia McEntee reports on a new app called SPN Connect which will provide a forum for colleagues to work much more closely together. Rather than see this limited to sole practitioners only, the forum is open to all solicitors in small practices and as such the SPN can equally represent a small practice network. SPN Connect was presented to the Practice Management Committee in February

Where users have ideas for improvements, we can look at how these might be incorporated

T

he online platform, which has been constructed to our requirements provides a secure forum within which colleagues can share information. A LinkedIn page for sole practitioner solicitors had been in place since 2010, and has over 300 members. Seeing that communication in that environment was working, although with active participation from a much smaller number, we took a closer look at the limitations of LinkedIn. We wanted to keep what we liked and improve on what we didn’t, so SPN Connect became more about what we wanted as a group, rather than a fixed offering from a third party. At first glance it may appear similar to LinkedIn, with topics and discussions, but it is far superior and offers the following: • A Google-type search engine for ease of review and finding subjects, people, topics and words.

• Information is fully indexed unlike Linkedin groups.

• SPN Connect also (through the app/desktop) enables meetings with video conferences, using Google Hangouts/Skype, allowing two (or more) practitioners to collaborate on documents (on screen) all from within one interface. This provides a very useful function for any solicitor wanting to work through a document or topic online with a colleague. LinkedIn doesn’t offer anything of this kind.

• SPN Connect allows for uploading of documents, where LinkedIn simply isn’t designed for that!

• SPN Connect can also facilitate links to other pages, as does LinkedIn. However, as the forum itself is privately owned by the group, there is full control over all information which remains there indefinitely. So if, in five years, you want to look back at issues about say, local property tax, you can just search under that heading and all historical information will be there.

• SPN Connect offers an integration in Outlook which makes it much easier and more compatible, where Linkedin doesn’t.

• SPN Connect offers more in the way of private

communications (or public or group) than Linkedin.

• SPN Connect offers polls – which enable people to see what the general mood of the group is toward a particular topic (for/against/ambivalent) – a feature that was previously available on LinkedIn, but was removed a couple of years ago.

• SPN Connect can be tailored to your preferences and needs much better than Linkedin settings allow; cut out what you don’t want and include what you do. Where users have ideas for improvements, we can look at how these might be incorporated.

As SPN Connect grows, so too will the potential benefits. What we are currently seeking to achieve is simply the next online step and easy communication platform that helps countrywide members in sole practice and small practice. Linkedin was working and will still have its place, particularly for non-solicitor to solicitor interaction, but our experience pointed a way to something that could be better. Neil Butler, based in Thurles, has provided all of the technical expertise in terms of building this product. It was through Neil that I became aware that the technology committee in the Law Society were going to have a look at the product itself, which has (up to now) been used internally in large organisations. That allowed us to review it with the assistance of colleagues interested in the use of technology in everyday practice and just goes to show, that when you ask for help, you will find it.

The platform itself is operated by a company called Tibco, and annual licence fees are payable. This is a subscription-based solution and we are currently asking for €120 per user per annum. This is solely to cover the costs involved as there are minimum licensing requirements, as well as company’s compliance costs etc.

We have set up a brochure website which will also allow payment by PayPal, this can be found at spnconnect.ie. We have been given some funding from the Law Society and AIB, to help with the start-up costs. The reality is though that this will have to pay for itself fairly quickly. It’s an opportunity not to be missed! P

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NOREEN ROCHE CONSULTANTS

consultants

NOREEN ROCHE M.Sc., R.G.N. M.I.O.S.H. Dip: Nursing Management, Psychology, Safety & Health at Work, Legal & Ethical Aspects of Nursing. Nursing Consultant, Ergonomist and Safety Advisor, Msc Health Ergonomics

• Preparation of extensive care reports and detailed costings for High Court,Tribunal and Mediation proceedings • Nationwide service: analysis, assessment, and investigation of clients and environments • Extensive experience in the following areas: Acquired Brain Injury, Cerebral Palsy, General Physical Injuries as a result of Workplace and Road Traffic Accidents • Detailed advice on Home Care Packages and Case Management in compliance with Revenue, NERA, and HSA legislation • Investigations of Occupational Injuries within the health sector and provision of detailed reports for Circuit/High Court Proceedings

Lindenlea, Silversprings, Clonmel, Co. Tipperary Telephone: (052) 6125980, Fax (052) 6127712 Mobile: 086 254 2753 Email: info@noreenrocheconsultants.com www.noreenrocheconsultants.com

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& ASSOCIATES

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LEGAL COSTS ACCOUNTANTS For over 50 years Behan & Associates have provided a comprehensive service to the Legal and Business communities.

Our highly experienced team of Legal Costs Accountants provide an excellent standard of service, which covers every aspect of Legal Costs, to include: • High Court Litigation and Dispute Resolution • Commercial Court • Arbitration • Circuit Court • Administrative and Public Law • Tribunals • In-house seminars provided

Blanchardstown Corporate Park, Dublin 15. Tel: (01)8606000 Fax: (01) 8829647 Dx 207, Email: info@behans.ie www.behans.ie 31948_Behan & Associates.indd 1

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Local Authority Litigation Denis Ryan considers where local authorities stand in respect of personal injury claims on foot of accidents on public footpaths in light of the recent High Court decision of Zara McCabe v South Dublin County Council

Practitioners should seek to establish whether a particular locus in quo is in fact part of a public road

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lthough the judgment of Mr Justice Gerard Hogan in the case of Zara McCabe v South Dublin County Council (2014 IEHC 529) delivered on November 18th 2014 may be a restatement of the established legal principles in relation to the liability of a highway authority for loss or injury arising from non-feasance, the detailed analysis contained in the judgment is a very helpful reminder for practitioners in the area. The case came before the High Court on appeal by the plaintiff against the order of the Circuit Court dismissing her action.

As a preliminary, it is worth quoting McMahon & Binchy’s Law of Torts (Fourth Edition 2013) where it is stated on page 1026, “It is well established that, whereas a highway authority may be liable for misfeasance, that is, acts of positively negligent character regarding the maintenance or repair of the highway, it will not be liable for non-feasance, that is, the failure to maintain the highway, however negligent that failure may have been”.

Ms McCabe sustained injury in 2009 when her foot became caught in an opening in the surface of a footpath in a housing estate. Hogan J records “The opening in question was missing its stopcock cover” and “presented a danger to the public at the

time...” Although there was controversy between the defendant’s senior executive engineer who gave evidence suggesting that the most likely explanation was that the stopcock cover had been repaired or replaced shortly before the accident, and the replacement interfered with and removed by unknown third parties before the concrete had set and the plaintiff ’s expert witness who postulated that the particular opening had been missed by the local authority when it had carried out general maintenance in the area not long before the accident, Hogan J found it unnecessary to make an adjudication on this dispute as irrespective of any resolution thereof, the result in law would be nonetheless the same.

Hogan J noted that section 2 of the Roads Act 1993 (“the 1993 Act”) defines a footpath as “a road over which there is a public right of way for pedestrians only, not being a footway”. Section 11 of the 1993 Act (as substituted by section 6 of the Roads Act 2007) provides that the maintenance and repair of all such roads is a function of the relevant local authority. He went on to review the authorities distinguishing Cross J’s decision in Loughrey v Dun Laoghaire Corporation [2012] IEHC 502 involving a plaintiff falling as a result of subsidence between two slabs on the pavement and the ensuing differential

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Spring 2015 dsba.ie Denis Ryan is a solicitor at Keith Walsh Solicitors, Crumlin

Litigation

in the level of the two slabs causing a tripping hazard on the basis that Cross J found that the danger was “caused by reason of either faulty construction or poor specification and design or a combination of the two”, and accordingly, in Hogan J’s opinion “the case presented a clear example of misfeasance on the part of the council”.

The finding of fact on the evidence in Ms McCabe’s case had to be that “the council either did not repair the opening at all (even though it had set out to do so) or, having done so, the opening was subsequently tampered with and removed by persons unknown” and the judge went on to hold “On any view of these two possibilities, the council is not liable by reason of the operation of the non-feasance rule”, both the situation that the council had intended to carry out a repair after a notification but had not in fact carried out a repair and the alternative scenario that the repair was carried out but tampered with “by parties unknown” amounting to a failure to act. There being no evidence that the council had repaired the opening in a negligent fashion, Hogan J dismissed the appeal albeit reluctantly as he went on to point out that the rule in question effectively dates back to 1788 and that section 60 (1) of the Civil Liability Act 1961 which was to have abolished the distinction between non-feasance and misfeasance in the context of highway authority liability has remained in limbo for over 50 years pending a commencement order.

A number of considerations arise for practitioners who may be consulted in similar cases including: 1. Practitioners should seek to establish whether a particular locus in quo is in fact part of a public road.

It can be the case, for example, that certain parking areas which are open to the public and perhaps metered are in fact owned and/or occupied by a local authority as opposed to having been taken in charge by the Roads Department.

2. Similarly, the rule does not have an application to questions of the maintenance of public parks and, it is submitted, green areas (public open spaces) which are taken over by a local authority on the completion of a development. It may also be possible to argue that it should not apply to the maintenance of grass verges.

3. Practitioners might also consider the question of the liability of the local authority and/or Irish Water as sanitary authority responsible for the installation, maintenance and repair of the public water supply and sewage system.

4. Obviously, the rule has no relevance to private multiunit developments where roads would be owned by an owners’ management company but some modern developments may have complex mixes of private roadways and roads which are taken in charge. P the Parchment 41

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Law Book Awards 2015 - the shortlist

Following a lengthy period of reading and consultation, the judges of the DSBA Law Book of the Year Awards are delighted to announce the shortlist for this year’s awards.

A gala dinner and prize giving ceremony will take place in June 2015 when the winners will be announced. Full details of the event will be available soon at www.dsba.ie The shortlisted books are as follows:

DSBA Law Book of the Year – sponsored by Byrne Wallace Solicitors

Employment Law Frances Meenan, Roundhall Thomson Reuters, €325

Evidence (2nd edition) Declan McGrath, Roundhall Thomson Reuters,€395

Law and Government, a Tribute to Rory Brady Edited by Bláthna Ruane, James O’Callaghan and David Barniville, Roundhall Thomson Reuters, €50

Local Authority Enforcement John Morrissey, Bloomsbury Professional, €185

Police Powers in Ireland Garnet Orange, Bloomsbury Professional, €175

Evidence in Criminal Trails Liz Heffernan and Una Ní Raifeartaigh, Bloomsbury Professional, €175

Defamation: Law and Practice Neville Cox and Eoin McCullough, Clarus Press, €249

Defamation: Law and Practice Neville Cox and Eoin McCullough, Clarus Press, €249

Landlord and Tenant Law, (3rd edition) Professor John Wylie, Bloomsbury Professional, €245

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Spring 2015 dsba.ie

Book Awards

Outstanding Contribution to Legal Scholarship Award - in collaboration with Law Society Skillnets

DSBA Practical Law Book of the Year

sponsored by Stephen Fitzpatrick & Co Legal Cost Accountants

Civil Procedure in the District Court (2nd edition) Karl Dowling, Suzanne Mullally and Brendan Savage, Roundhall Thomson Reuters, €225

Enforcement of Judgments Sam Collins, consultant editor: Declan McGrath, Roundhall Thomson Reuters, €165

Arthur Cox Employment Law Yearbook 2013 Arthur Cox Employment Law Group, Bloomsbury Professional, €90

The Taxation of Companies 2014 Michael Feeney, Bloomsbury Professional, €199

Summary Judgments in Ireland: Principles and Defences Pat Barrett, Bloomsbury Professional, €166

2014 Book Award Winners

The Child Care Acts 1991 – 2013, Annotated and Consolidated Paul Ward, Roundhall Thomson Reuters, €165

2014 DSBA Book Award Winners with Justice Minister, Frances Fitzgerald, William Binchy, Karen McDonald, Karl Dowling and Bill Holohan the Parchment 43

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Susan Martin is the Principal of Susan Martin Solicitors, Dublin 13 and she is a Council member of the DSBA

Debt

High Court Debt Practitioners who act for either creditor or debtor may find the recent judgement of O’Malley J in Ulster Bank Ireland Ltd v Dermody of interest. Susan Martin takes a closer look

An employee of a bank could give evidence on behalf of the bank as an officer within the meaning of the 1879 Act

I

n Ulster Bank Ireland Ltd v Dermody [2014] IEHC 140 - the plaintiff initiated proceedings against the defendants for recovery of money owed on foot of a guarantee. These proceedings were commenced in the Master’s Court and the plaintiff’s application was grounded on foot of an employee of the plaintiff’s parent company exhibiting what he averred were copies of the guarantees, letters of demand and statement of liabilities.

There are a number of proofs required for the collection of a debt at the High Court including • 7 day letter of demand to the defendant • Indorsement of claim setting out how the debt came to be owed • What sums were paid on account and the opening and closing balance • Interest if it is claimed and the basis on which is it charged.

The defendants advanced an argument that the bank had not proved the debt as the deponent in the grounding affidavit was not an employee of the company but of its parent company.

The plaintiff was of the view that this was immaterial and sought to rely on the Bankers’ Books Evidence Act 1879. It is worth reviewing the relevant legislation which is still relied on for proofs today.

• The original purpose of the legislation was for banks and parties to litigation, to avoid the inconvenience of having to respond to a subpoena to prove the amount held in an account • Prior to 1989 this did not apply to cases in which the bank itself was a party but subsequently, after the 1879 Act had been amended the same provisions applied to the bank as a party to a case • An employee of a bank could give evidence on behalf of the bank as an officer within the meaning of the 1879 Act • The bank could not when it suited their own purpose, lift the corporate veil • That being the case the evidence deposed by the employee of the parent company was hearsay and therefore the plaintiff had not proved its case against the defendant.

Bankers’ Books Evidence Act 1879

Application to Practice

3. Subject to the provisions of this Act, a copy of any entry in a banker’s book shall in legal proceedings be received as prima facie evidence of such entry, and of the matters, transactions and accounts there recorded.

4. A copy of an entry in a banker’s book shall not be received in evidence under this Act unless it be first proved that the book was at the time of the making of the entry one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business and that the book is in the custody and control of the bank. Such proof may be given by a partner or officer of the bank, and may be given orally by affidavit sworn before any commissioner or person authorised to take such affidavits” (emphasis added)

When acting for the plaintiff it is worth noting the following points: • Get the original contract on foot of which the loan was advanced • Ensure the appropriate deponent is selected to review the file and prepare the grounding affidavit • Check for any changes of name in the plaintiff since the date of the advance of the loan.

The defendant’s then submitted in the context of the above legislation that the evidence offered by the plaintiff in its grounding affidavit was hearsay given that the deponent was not an employee or officer of the plaintiff.

O’Malley J then having reviewed the legislation and the case law came to the conclusion that:

When acting for the defendant: • Prior to the commencement of proceedings consider getting the defendant to make a request for a copy of their data under Section 4 of the Data Protection Acts 1988 to 2003.

• Check on the status of the defendant in the Companies Registration Office • Check the proceedings when they come in for the proofs which the plaintiff should satisfy at the Master’s Court stage.

• Consider any points which are not properly satisfied by the plaintiff as part of a replying affidavit. P

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Spring 2015 dsba.ie Keith Walsh is a former president of the DSBA. He is principal of Keith Walsh Solicitors, Crumlin

Costs

Focus on costs Keith Walsh looks at one of the first cases dealing with how the Taxing Masters will deal with a personal injuries case issued in the High Court after the change in the jurisdiction but which only achieves Circuit Court level of damages

Personal injury case issued in High Court but achieving Circuit Court damages determined by Taxing Master O’Neill on November 5th 2014 K v RA High Court Record no. 2766P/2014

Brief Facts of the Case Road traffic accident on June 8th 2012.

Liability not in issue.

Case listed for hearing on July 24th, not reached and settled on July 25th 2014.

Agreed settlement €42,000.

Proceedings issued in the High Court after the change in jurisdiction.

Instructions Fee Proposed by Both Sides The instructions fee was claimed in the bill at €13,500 based on the Taxing Master’s allowances in High Court assessments where damages in the region of €40,000 to €50,000 had been recovered.

On taxation the defendants were represented by Mr Paschal Garrett, Legal Costs Accountant who proposed an instructions fee of €8,000 in respect of all work done. Mr Garrett attempted to have the costs reduced to such a level given that the proceedings settled within two months of being served on the defendants.

David Dunning of Behans Legal Cost Accountants took the Taxing Master through all of the work done pre issue of proceedings which included obtaining five medical reports on the plaintiff ’s injuries.

Rationale and Decision of Taxing Master Nature and Extent of the Work Important

The Taxing Master agreed that obtaining that number of reports pre proceedings, indicated that the work

done was substantial. It was submitted in relation to the work done post service of proceedings that the solicitor should be commended rather than penalised for facilitating speedy conclusion of the proceedings.

Behans for the plaintiff solicitor introduced a number of precedent cases which had been taxed by Master O’Neill where the damages had ranged between €40,000 to €45,000. The work carried out in those proceedings was of a similar nature to the work carried out in these proceedings and the defendants were unable to differentiate any of the work done to support their suggestion that the fees should be reduced to the level proposed merely because the costs awarded were Circuit Court costs.

The Taxing Master allowed an instructions fee of €10,500. He stated that the jurisdiction had been changed for a reason and that he had to take into consideration the fact that these were Circuit Court rather than High Court costs, but that as in all cases it was the nature and extent of the work that was important.

Counsels’ Fees In relation to counsels’ fees the same considerations arose, in the precedents which Behans referred the Taxing Master to, the Taxing Master had allowed between €1,850 and €2,000, the Taxing Master proceeded to allow senior counsel’s brief fee of €1,800 and junior counsel a brief fee of €1,200. In relation to the remainder of counsels’ fees, these were reduced to the appropriate Circuit Court level. P

Behan & Associates Legal Costs Accountants instructed by Keith Walsh Solicitors for the plaintiff Cyril O’Neill Legal Costs Accountants instructed by Hayes McGrath Solicitors for the defendant the Parchment 45

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Tribute

Thank you Justin

T

he father of the Parchment, Justin McKenna stepped down from the magazine’s committee in January after a lifetime of service to this great publication. He founded the Parchment in January 1996 when he saw that the Dublin Solicitors’ Bar Association needed its own publication.

Ahead of his time, McKenna published the Parchment single-handedly for many years and he oversaw its growth and success. He mixed journalism and the ‘day job’ with ease, and was always able to give great insight into the profession – reporting on changes in the law, developments in practice and the many social aspects of the DSBA.

The growth and success of the Parchment under Justin McKenna’s leadership could not have occurred without his clear and concise vision and vigilant attention to detail. Much of the Parchment’s success is attributable to its founding editor, Justin McKenna. What started out as a unique journal with opinion pieces and articles that were important to practising solicitors has now turned into an award-winning magazine, that can take its place among the best and which is now circulated to upwards of 4,000 solicitors per edition.

The partners-at-law solicitor had a passion and energy for journalism and he subsequently passed the baton on to successive editors Kevin O’Higgins, Stuart Gilhooly, Keith Walsh and John Geary. After he left the editor’s chair, Justin continued to make significant contributions on the Parchment committee and so after 19 years, the Dun Laoghaire practitioner has decided that the time has come to bring the curtain down on his Parchment involvement.

The DSBA and the Parchment committee are saddened at Justin’s departure but we wish him every success for the future. And we all wish to thank you Justin for everything you have done for the Parchment and for your immense and invaluable contribution. We hope that the trajectory set by you can be maintained for many years to come. P

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DSBA SEMINARS DATE

DSBA SEMINAR/CPD

TOPIC

14 April 2015

Probate and Tax Seminar

Sandra Meade will deal with interaction of UK and Irish capital taxes for estates and the measures available to deal with double taxation. Lydia McCormack advises clients with assets in multiple jurisdictions with regard to estate planning and Will preparation. She also deals with the administration of complex estates. She will discuss relevant issues for clients with foreign assets in respect of estate planning. Her presentation also covers Will drafting, relevant legal issues and practical requirements when administering estates with foreign assets. Paula Fallon, Solicitor will chair the seminar

21 April 2015

Litigation Seminar

The Defamation Act 2009 has overhauled defamation law and practice. It created a new tort of defamation and abolished the distinction between libel and slander. It has introduced new statutory defences and new amendments to procedures. Remedies and damages have been overhauled as the landscape for defamation has entered into a new era. The incidence of defamation has also increased exponentially with the advent of social networking and individuals now have the ability to publish their thoughts and ideas, good and bad from their mobile phones, tablets, work and home computers. This seminar provides an unmissable opportunity to gain an insight into how the Act has evolved and to hear the experiences of the top practitioners in the area.

UPCOMING PROPERTY SEMINARS

Mr. Justice Donal O’Donnell, Judge of the Supreme Court will chair the seminar and will provide his views on the evolution of the tort of defamation. Declan Doyle SC will provide an insight into how defamation claims are pleaded and tried in Court. He will give his views on assessing defamation claims in terms of success at trial and quantum of award. Joe O’Malley will analyse the defences to defamation claims provided for under the Act, including truth, honest opinion, privilege and fair and reasonable publication.

Shane English B.L. will provide an update and overview of common types of Defamation claims and the practical issues that arise.

12 April 2015

Commercial Law Seminar

20 April 2015

Litigation Seminar

29 April 2015

“New Builds in New Times – Part 2 – Commercial”

06 May 2015

In House Lawyers Seminar

26 May 2015

“Banking Law for Property Lawyers”

For more information and to book your place, visit www.dsba.ie or contact Maura Smith at the Dublin Solicitors Bar Association office at 01 4763824 or email: maura@dsba.ie DSBA, 90 Harcourt Street, Dublin 2, DX 212011 Suffolk Street

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Social Media

- a positive impact on your business Lesley Moore points out the importance for law firms and solicitors of having a social media presence

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few years ago, I carried out a benchmarking study across different types of professional service firms such as solicitors, accountants, HR, etc to assess how they used online information tools to communicate internally and to market themselves externally with clients. The results showed that it was the law firms who were the most under-developed in this area.

Since then economic and market pressures have changed the landscape; the professional services scene is much more competitive and clients themselves are demanding more from their advisors. Clients now have more choice when selecting a legal practice and are much more informed buyers thanks to Google. Apart from asking around in their network for opinions of your firm, they can find out about you online, checking out how you represent yourself, see who your clients are, what you specialise in and if you are a leader in your field. So, what you say online and how and where you say it, is critical for your reputation.

The real art of marketing legal services is no longer passive. This is where using social media tools can bring a huge advantage to your firm, large or small, if you get it right. The opportunities to engage directly with clients and potential clients are very real and to realise the benefits of this, solicitors must now do one thing. Become social.

Networking and engagement through online commentary and sharing is becoming increasingly more important for solicitors looking to build word of mouth and lasting relationships. People hire solicitors, not firms. Therefore relationships matter (as they always have offline) and this is all the more reason for individual solicitors to use social media effectively.

Which Tools Should you use?

Social media tools such as Twitter, Facebook, LinkedIn and blogs provide fast and cost effective ways to keep in touch with clients and prospects, keep an eye on competitors and keep up-to-date with industry trends. But how do you know which is the best tool

to use? Maintaining a presence on social media is time consuming, so making a careful selection of the most relevant tools for your firm is critical.

The top tools currently used by law firms (there are many others) are LinkedIn, Twitter, Facebook, blogging and Google+ (although rare). Many law firms start out by assuming that the best social media platform for them is LinkedIn but that’s not necessarily the case. It is a great B2B marketing tool but for sheer number of users, Facebook has far greater reach with 1.35 billion active monthly users. That’s not the total number of users worldwide, but active users which is more important. LinkedIn has 187 million active users and Twitter has 284 million.

Facebook is often dismissed by solicitors as a place for personal networking and where younger people chat and socialise but in fact, of the users aged 35+, 80% are using Facebook for both personal and professional networking. Of this age group, only 66% are using LinkedIn. Networking savvy solicitors are finding Facebook a good choice when it comes to building relationships and word of mouth. Consumers and businesses, at all levels, want to get to know their lawyer – personally and professionally – and Facebook provides the opportunity to do both. Twitter fits alongside LinkedIn and Facebook and is a more immediate marketing tool for announcements, promoting content and generating leads. It is also an invaluable tool for monitoring your competitors and industry developments and finding influencers with whom you may want to engage.

Tailoring your Content To give an example of how social media is used to great effect, one Irish law firm that seems to use social media well is Matheson. It’s the only one using Facebook, Twitter and LinkedIn. Other large firms are tending to use one or two tools and many smaller firms are not on social media at all.

On Facebook, Matheson focuses on recruitment.

They use promotional videos and open day announcements and include student testimonials.

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Spring 2015 dsba.ie Lesley Moore helps Irish businesses with digital marketing and the use of social media. Visit www.lesleymoore.ie

They understand that Facebook is a much more personal place than other social media sites and they use this to attract potential recruits. With Twitter, the target audience is different. The firm tweets about conferences and talks they organise, their charity work and promoting their own content. On LinkedIn Matheson works on maintaining its credentials as a thought leader by posting links to their online newsletter, podcasts and other material of their own.

Understanding the demographic of each social media tool and tailoring your content to your different audiences ensures that you are getting the right message to the right people and that they will be interested in what you have to say, developing a positive opinion of your brand. It also allows you to attract the type of business you want to expand your client base.

Earlier this year, I carried out a project with Allen & Overy in London, assessing how they use their information resources. They use LinkedIn, Twitter and Facebook. Again they have segmented their markets and have several Facebook pages, e.g. a specific one for graduates, several Twitter accounts, including ones for corporate social responsibility, an anti-trust group and jobs. On LinkedIn, they have separate pages for their global offices, the UK office having 36,000 followers.

During the project I was interviewing partners and other senior fee earners in the firm, asking how they

Maintaining a presence on social media is time consuming, so making a careful selection of the most relevant tools for your firm is critical

Practice Management

use the many costly information tools placed on their desktops. Although well used, their main resource is to use Google as their first port of call. If they have a meeting coming up with a client, they will search to see what that person is saying and doing and they are checking social media tools to do this. LinkedIn is checked to find out current and past activities and to understand the client’s key areas of interest. Twitter is being used extensively to see what clients are talking about, who they are engaging with and the issues they may be facing.

Social media works both ways. It’s a great research tool to find industry and people information but it is also an important place to be found. This applies to all sizes of practice, not just the big firms. Using social media effectively is just as important for small local practices to help them stand out from the crowd and create a distinct advantage.

What Should you be Sharing?

Having selected the social media tool you want to use, the next challenge is what to say, what to post and how to engage your audience. Content falls into three main categories: 1. Original written content, 2. Curated content from respected others, 3. Visual content such as photos, videos, infographics. the Parchment 49

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When you write great blog content that displays your unique subject matter expertise, others will share it on social media, helping to extend your reach even further

All three are important but according to recent research by Marketo.com original written content is the most highly valued by both clients and Google alike. Google will bring the most relevant information to the searcher and measure relevance by how much content is viewed, shared and cited. The best way to deliver this content is by writing a blog. It is still the most effective way to increase your visibility on Google and it allows potential clients to know you and like your personality which builds trust before you even meet.

When you write great blog content that displays your unique subject matter expertise, others will share it on social media, helping to extend your reach even further. The trick is to use a blog to enrich your social media and to use social media to promote your blog.

When you write well with passion and authority, your blog will succeed as will your online reach.

Benefits of Social Media There are some huge benefits to engaging with social media as part of your marketing mix. They are: Practical • Increased exposure online • Increased traffic to your website

• Improving search rankings • Reduced marketing expenses Business • Generating leads and finding the work you want • Developing loyal fans and followers • An insight into your marketplace • Building your reputation …which ultimately leads to improved sales with the type of business you want to attract.

Of course the benefits come with key challenges and the biggest one of those is time. One of the most important success factors with social media is consistency. Posting to the sites regularly, blogging regularly, it all takes time and effort.

However, if you take a strategic approach, perhaps starting with one social media platform and plan what and when you want to write, then you will have a greater chance of success. Your consistency will pay off by receiving feedback and comments from people, allowing you to engage with them, build relationships and deliver the content they want. This can only help you to develop a more effective law practice meeting the needs of your target audiences.

Are you ready to make a positive impact on your business? P

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Electronic Searches – The Future?

The way searches have been carried out for the closing of sales has changed very little over the last 200 years. That is now set to change, particularly with the advent of eConveyancing.

Greg Ryan meets the people behind ENKI, the new Electronic Searches Service

E

NKI launched on a pilot basis in December, 2014, and has now expanded across the country. For those of you who are unaware, ENKI is the Sumerian god of knowledge, an appropriate if tongue in cheek name for such a wide service.

When you enter the service, you are presented with a dashboard which allows the searcher to order Companies Office, Land Registry, registry of deeds, bankruptcy, judgment and sheriff searches. The searches can be ordered for any date in the future, and one of the very useful elements is that when you set up the searches for a closing date at whatever date you choose in the future, for example three or four weeks off, the service will search daily (without cost to you) against any entries against the parties or Land Registry folios concerned between set-up date and the closing date. Thus if you set up closing searches on the date the contract is signed, you will immediately know if any adverse Acts appear, even though you specifically haven’t requested a search in the interim.

There are three pricing models starting at €75 up to €99, which compares very competitively with the offerings on the market at present. Furthermore the searches can be updated for a small fee in six months or a year. It is also useful if your dealing is rejected from the Land Registry and you have to carry out up-to-date searches.

Registration on the website is very easy as it operates in conjunction with the data on the Law Society website, thus pre-populating all the fields for registration, and minimising the form filling.

The searches are kept on the site for a year, and are then archived, and thus can be retrieved by the solicitor at any time in the future.

The service also does its best to rectify human error.

For example, a search against John Quinn will also return any variants of Sean Quinn, or even in the example demonstrated to me, John or Sean Rynne. Furthermore for a registry of deeds search, when the townland is put in, it automatically populates the fields of the baronies and parishes, of great assistance to those who simply don’t have those details to hand.

The judgement search carries out a full search on the courts website which includes the Personal Insolvency Office, Bankruptcy Office, High Court Office, foreign bankruptcies, Lis Pendens and Companies Acts, including petitions to wind up and so forth.

The system also gives an option to practitioners to carry out a planning search online, and gives an immediate quotation for the price of that planning search which varies from county to county.

Even if a user does not wish to register, they can carry out the searches on the spot for a small fee by immediate payment using a credit card.

I went to meet with Barry Darmody, the CEO of ENKI and asked his views on the advantages of the new service. Barry was previously the chief executive of Rochford Brady and has considerable experience in searches. He tells me that when he was chief executive at Rochford Brady, the company employed 120 staff north and south and he learned some very important lessons. They brought innovation and change to the day-to-day workflow, and evolved their offering to cope with the change in technology. Having learned the lessons during the previous property boom, he set out with the objective of a more efficient and effective proposition, and so ENKI was born. There are a number of key issues which they had faced up to 2008, which they set about dealing with methodically. The first of these was time pressure. The challenge was if you take the time pressure

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Spring 2015 dsba.ie Greg Ryan is a council member of the DSBA, member of the DSBA technology committee and chair of the Law Society technology committee

out of the process, he estimates that 99% of the stress will be eliminated. So, therefore with ENKI the search is a requisition online and as it is returned instantly, it can be ordered at any time (including at the last minute) and furnished instantaneously. As the ENKI system will monitor the search and send updates every date until closing, there will never be any last minute surprises on the closing day to stress out an already stressed solicitor.

The ambiguities as to costs were another variable which caused stress for the solicitor, which ultimately then were passed on to the client. ENKI offers three basic packages: unregistered property searches cost €90, registered properties cost €75 and both together cost €99. The fees are fixed, irrespective of the number of parties added to the requisition.

The big issue for most conveyancing practitioners is the registry of deeds searches. As the ENKI programme combines a detailed and complex mapping app which interacts with Land Registry maps, this maps the property address to the parish and barony and then searches those to ensure they are as accurate as traditional searching.

Information Technology

Barry stresses that the benefit to the client is that all the searches are carried out in real time and online, and the solicitors can commit to a bundle of searches, reducing the client’s outlay.

ENKI has gone one step further with his website and set out to build an information resource. The target for this information resource is the secretary or legal executive, who isn’t 100% certain of what they are doing, but needs to access the information quickly and easily. Thus they invested considerable time and resources in building a site which contains that information in an easy to access format, which is utilitarian and educational.

Barry has also set about making the user interface as simple and user friendly as possible. When he demonstrated it to me, it took less than five minutes to understand all the key features of the site and to requisition my own closing searches, considerably shorter than learning what the searches entailed in the first place.

Is this perhaps the first step towards computerisation of the conveyancing process? P the Parchment 53

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Capacity Issues The scheme of the Capacity Bill was published in 2008 and the Assisted Decision-Making (Capacity) Bill was published on July 17th 2013. It is now March 2015 and we have been advised that there’s no realistic prospect of the bill being enacted in the short, medium or even long term. All of this leaves colleagues in often difficult and murky territory. Chair of the DSBA mental health and capacity committee, Aine Hynes provides practical guidance as to what to do when capacity issues arise in practice

I

t is important to first consider how a solicitor should deal with taking instructions from a client where there is a concern in relation to their capacity to instruct and to protect the integrity of the transaction so that it is not vulnerable to a successful legal challenge or indeed a potential negligence claim. I will outline a number of options that can be explored in progressing matters for persons who do not have legal capacity.

Assessing client’s capacity to instruct The new provisions of the Law Society’s A Guide to Good Professional Conduct, 3rd edition (“3rd edition”) gives some assistance to practitioners when dealing with a client where there are concerns regarding their mental capacity and how to assess if the client is capable of instructing them in relation to the particular transaction.

Chapter 2 of the 3rd edition provides:

Client lacking mental capacity “As with any other contract, if a client lacks mental capacity, he does not have the legal capacity to enter into a contractual relationship with the solicitor.

A decision on legal capacity should be made in relation to the specific issue about which the client must give instructions, in recognition of the fact that there are different levels of understanding required for different transactions. The client may have sufficient capacity to make some decisions, but not others. There should also be recognition that mental capacity may fluctuate. An assessment as to capacity should be made at the time the client is giving instructions and at the time of the execution of any document.

However, it should also be recognised that in some cases a person may not have the capacity to make any decisions which have legal consequences.”

The previous position in the 2nd edition was that “if a client is of unsound mind, he does not have the legal capacity to enter into a contractual relationship with the solicitor”. However, there were no guidelines as to how to make that determination. The previous approach reflects an all-or-nothing type of approach, rather than an issue-specific or functional approach.

Assessing capacity to instruct is not novel to solicitors. A solicitor will always be alert to capacity issues in making a will for an elderly client and indeed in drawing up an enduring power of attorney, a solicitor signs the following statement: I, ....................................................., solicitor, of ........... ............................ hereby state that after interviewing the donor [and making any necessary enquiries]* I am satisfied that .................(the donor) understood the effect of creating the enduring power and I have no reason to believe that this document is being executed by the donor as a result of fraud or undue pressure.

Signed............................................................

Date............................................................... * Delete if enquiries not necessary.

It is very important that solicitors make an assessment and record their assessment of the client’s capacity to understand the information relevant to the nature of the transaction, retain that information and weigh it in the balance to arrive at a decision and be able to communicate their decision.

Therefore a solicitor should: a) Set out information to be communicated to the client in relation to the transaction and set out the

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Spring 2015 dsba.ie Áine Hynes is a partner at St John Solicitors. She is chair of the DSBA mental health and capacity committee and a member of the Law Society mental health and capacity taskforce

Mental Health Law

options available. b) Ascertain the client’s understanding of the information and the options. c) Can the client retain the information? This can be ascertained by asking the client their understanding of what is to be transacted. d) Can the client weigh the information as part of the process of making a decision? e) Can the client communicate the decision?

If the solicitor has concerns regarding the capacity of their client to instruct, assistance may be sought from a medical practitioner.

Once the solicitor is satisfied that the person has the requisite capacity, with or without the obtaining of corroborative medical evidence, this must be recorded very carefully by the solicitor. Careful attendance notes are important and particularly so where there are issues of capacity or vulnerability. Comprehensive attendance notes assist in resolving future issues and can minimise litigation.

What to do when legal work is required for a person who does not have capacity?

The third edition also clearly set outs the legal position that a family member cannot act on an ad hoc basis for a family member lacking in mental capacity where there is no legal framework in place to do so. A solicitor should first check to see if there is an enduring power of attorney in place which could be registered to enable the attorney to act.

Capacity to contract for legal services “A person lacking mental capacity does not have capacity to contract with a solicitor for legal services.

Accordingly, where a family wishes to provide for a member lacking mental capacity which involves transferring, or otherwise dealing with, their assets, the solicitor who has been consulted should advise the family that it is not possible for that solicitor’s firm to act on both sides of the transaction. The family should be informed about the wards of court system.

It should be explained that if the wards of court office is involved, it will act on behalf of the person lacking mental capacity to ensure that the interests of the person lacking mental capacity are protected. For instance, it would not be correct for the solicitor to attempt to deal with this person’s assets, by getting that person to sign documents.”

The important point to note is that there should be a legal framework in place in order to deal with the assets of an incapacitated person, whether under a trust, an enduring power of attorney or by way of wardship.

Practitioners should also note under O 15, r. 17 of the rules of the superior courts “a person of unsound mind may sue as plaintiff by his committee or next friend, and may defend by his committee or guardian appointed for that purpose”.

Many cases are taken on behalf of legally incapacitated persons by their next friends and appointments of guardian ad litems have been made by the courts during the course of proceedings. There may be circumstances where an award is made for persons who are not in fact a ward of court. In some cases, and depending on the quantity of awards involved, it is

The important point to note is that there should be a legal framework in place in order to deal with the assets of an incapacitated person, whether under a trust, an enduring power of attorney or by way of wardship

not always possible or desirable to proceed to making a wardship application and to lodge the awards in the wards of court office. In such cases, orders have been made by the President of the High Court for the monies to be held by the next friends or other appointed persons, to the account of the incapacitated person and to be reported on to the wards of courts office on an annual basis. These kinds of orders would have to be dealt with on a case-by-case basis and in conjunction with the ward of court office so as to ensure there is lawful authority in the form of an order of the High Court to approve such arrangements.

What happens when a client loses capacity during the course of a retainer?

A recent UK case dealing with a situation where a represented party lost mental capacity, may be of assistance to Irish lawyers. In this case the client lost mental capacity in the course of proceedings and UK courts had to consider if such loss of capacity terminated their solicitor’s retainer. The case is Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust [2014] EWHC 168 (QB) (February 5th 2014) and the full judgment is at the following link: http://www.bailii.org/ ew/cases/EWHC/QB/2014/168.html At first instance the court held that as a matter of law, supervening incapacity automatically frustrated and thus terminated a contract of retainer. On appeal the High Court considered that the supervening incapacity of a client was not an event which frustrated the contract for services from a solicitor, leading automatically to its termination. The court held that incapacity could have the effect of removing the authority of the solicitor to act for the duration of such incapacity. However, such authority can be restored when for example, a deputy is appointed and provides instructions to the solicitors, or otherwise if and when the client regains capacity. P the Parchment 55

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Ciara McMahon is a trainee solicitor with Hayes Solicitors

Litigation

What is an appropriate legal fee?

Ciara McMahon reviews the judgment of Mr Justice Nicholas Kearns in the case of Isabelle Sheehan (a minor) V David Corr [2009 No 10344P] and says it represents a significant decision of the High Court regarding costs, and more particularly, the issue of appropriate legal fees

The decision highlights the importance of appropriate time recording for the purpose of the taxation process

T

he solicitors on behalf of the plaintiff, Augustus Cullen Law (“ACL”) brought an application pursuant to Order 99, rule 38 (3) in order to review the rulings of the Taxing Master in relation to their instruction fee in this medical negligence case. The defendants were represented by Hayes Solicitors. In delivering the judgment of the court, Mr Justice Kearns upheld the Taxing Master’s decision reducing the fees claimed

by ACL from €485,000 to €276,000. The figure of €485,000 has been based on a solicitor’s instruction fee of €375 per hour and took into account a brief fee of €125,000 plus daily refresher fees of €3,500 for senior counsel, Denis McCullough, SC. A number of arguments were canvassed by ACL in respect of the flawed approach of the Taxing Master which were dismissed by the court.

Firstly, the court, in agreement with the Taxing Master, did not accept that the case was particularly complex or novel. The court held that the mere fact that a condition is rare and unusual does not necessarily render the case more complex in terms of work or preparation.

ACL also argued that the Taxing Master had failed to pay adequate regard to cases where larger fees were measured or agreed, even in the aftermath of the economic downturn. However, Mr Justice Kearns noted that historical comparators are of limited value where a major financial and economic catastrophe has affected the national finances. He further stated that “Comfortable assumptions that the calculation of fees for legal services should simply continue as heretofore, without the slightest regard to the privations experienced by citizens, including those rendering professional services, does not in the court’s view serve the interests of justice”.

Interestingly, Mr Justice Kearns suggested a practice whereby the Taxing Master, on an annual basis,

could consult with an economist whose report could inform him of the extent of cuts in remuneration for professionals. This could then constitute guidelines for which practitioners could consult prior to taxation.

The court also rejected claims that this was a “David and Goliath” situation as between the two sides in this case, noting that ACL is one of the most experienced firms in Ireland when it comes to dealing with plaintiff medical negligence litigation and that counsel on behalf of the plaintiff is perhaps the “foremost senior counsel” practising medical negligence litigation in the country.

The decision highlights the importance of appropriate time recording for the purpose of the taxation process. In this instance, aside from time records accounting for the final few months of the case, ACL provided an “unhelpful estimate” of between 1,000-1,200 hours expended on the file without any breakdown with regards to specific portions of work.

The court held that this estimate was both unreliable and unacceptable. The court also noted that a certain degree of double charging was evident. The court went on to emphasise the importance of recording adequately: a. What work was done b. Who did it c. How long it took d. The appropriate rate for the nature of the work.

Finally, the court held that the Taxing Master was not obliged to make allowances for the fact that the case was taken on a “no foal, no fee” basis as ACL had not made reference to any legal principle or authority to justify an uplift of fees on this basis. The court also held there was no basis on which ACL should receive an additional €100,000 by reference to “intangibles”.

The court therefore dismissed the appeal and costs were awarded in favour of the defendant. The case is now under appeal to the Court of Appeal. P

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DSBA News

Dublin to get new Family Law Courts The Courts Service reported recently that the Chief Justice, the Minister for Justice and Equality, Frances Fitzgerald, and Minister of State at the Office of Public Works, Simon Harris, announced that a major site off Church St. will be used for the new Dublin family law court centre. It is located at Hammond Lane off Church Street in Dublin.

Chief Justice Denham is reported in the Courts Service News as saying that “there is a great need for a single centre where family cases may be heard, with all the required support services at hand. This site poses a great opportunity for us to do something positive.

It can link the administration of family law, and many other of our public services to the Four Courts complex”.

Minster for Justice Frances Fitzgerald is reported as stating, “I am fully aware of the need to develop suitable and appropriate facilities in regard to family law cases. I fully support the plans to centralise all family law business, including mediation and legal aid services in Dublin.

This is an ambitious project which will require detailed planning and consultation and I am happy that my Department

will engage fully in taking this forward”.

The parchment understands from the Courts Services that the next step is the preparation of a detailed business case for the proposed development which means work to determine the exact arrangement of services to be included in the building, construction could potentially begin in 2016 and be completed in 2018.

Rathmines & Rathgar Musical Society David Cox has extended an invitation to DSBA Parchment readers to become associate members of Rathmines and Rathgar Musical Society.

Since 1913, the society has staged two musical productions annually including My Fair Lady, Carousel, Gigi, South Pacific, The Producers etc and all the Gilbert

and Sullivan operas. Whilst maintaining its amateur status, the society has always striven to stage performances to match the best professional standards and consequently has been a stepping stone for many young artistes who have gone on to the professional stage.

Support for the society to

Recent Children’s Rights Moot Court Winners

continue this tradition into its second 100 years is needed and we ask members of Dublin Solicitors’ Bar Association to become associate members.

There’s an annual donation of €140. Benefits of membership include two complimentary seats for both the spring and autumn productions plus priority booking.

Hopefully some of you will answer the call by sending a cheque in favour of the society for €140 to, or seek more information from, the membership secretary, David Cox (retired solicitor) at St Mary’s, 20 South Avenue, Mount Merrion, Co Dublin or email: davidanthonycox20@gmail.com.

Wifi at Four Courts Outside of the Law Society service, currently Wifi is available to members of the judiciary, members of the Court Service staff, and members of the bar in the Round Hall, around the information desk outside the Supreme Court, in the Supreme Court itself, and in the public area outside the Law

Library. It is also available in Phoenix House. As a result of a request from the Law Society, it has been agreed to give practitioners access on the same basis as the bar. Details of how to access Wifi will be given to members by the IT Manager of the Law Society in due course.

2015 DSBA Membership Any members or firms who have not sent in their annual membership fee for 2015, the DSBA would be very grateful if you could do so now. There are many benefits to membership of the DSBA including From left to right: Paul Carroll, An Post Solicitor’s Office; Valerie Peart, chair of education committee; Barry Connolly, Flynn O’Driscoll Solicitors; Kevin O’Higgins, President of Law Society; Doreen Mescal, A&L Goodbody Solicitors; Dr Geoffrey Shannon, team coach, child law expert; Laura Byrne, James Riordan and Partners Solicitors

your complimentary copy of the Parchment. Your support is very much appreciated. Full membership details and fees are available at www.dsba.ie or by contacting Maura Smith at the DSBA office on 01-4763824.

Your Views Requested The DBSA practice management committee would like members feedback on what issues you would like the committee to focus on this year. Please email committee chair Peter Boyle at peter@peterboyle. ie with your views, thoughts and opinions.

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www.abacuslawcosts.ie

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23/03/2015 10:49

Why do Solicitors who are familiar with us, suggest that their clients, check out “Property Health Check” for their Pre-Purchase Surveys and Planning / Building Regulation Certificates?

Here is the answer…

Our thorough Pre-Purchase Building Survey will mean that YOUR CLIENT won’t get stuck buying a Money Pit.

This firm was established by Marion Campbell in 2010. Qualified as a solicitor in 1976, she has practised exclusively in the area of family law since 1982. This firm provides advice to clients in all areas of family law including the upcoming area of surrogacy, in a timely and cost effective manner. Marion Campbell has practiced in the area of family law since 1982, she has been involved in two landmark cases involving guardianship rights for natural fathers and the most recent landmark surrogacy case before the Irish Supreme Court. Marion is ex-Chair of the Family Lawyers Association of Ireland and a member of The International Academy of Matrimonial Lawyers (IAML).

Marion Campbell Solicitors 16-18 Harcourt Road, Dublin 2 +353 (1) 475 9345 info@mcsolicitors.ie

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• We are professionally qualified and PI insured Building Surveyors • All our Pre-Purchase Building Surveys are detailed, independent and unbiased with photos showing defects and other areas of concern.

• Our sole objective is to ensure that YOUR CLIENT is provided with independent professional advice to allow him / her make the best decision and protect their long term interest. (See our website for a sample report. http://www.propertyhealthcheck.ie/building-survey-report To assist the Solicitor during the conveyancing process we also endeavour to include in our detailed reports.

• Party Walls Concerns.

• Possible / Likely Encroachment over Boundary Lines.

• Alerts on Extensions / Alterations that may require Planning Permission and / or Building Regulation compliance certificates.

• Folio Map check against actual boundaries on site, when copy of folio map is provided before survey.

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Spring 2015 dsba.ie

Dublin Southside Solicitors Annual Gathering

The solicitors of Dun Laoghaire and surrounding environs gathered for the 30th annual black tie social on February 6th 2015.

A great night was had by all.

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Property Seminar

Photography: Michael Finn

The DSBA conveyancing committee hosted a seminar on March 5th 2015 entitled New Builds in New Times.

The speakers were Alison O’Sullivan (Byrne Wallace); Sonia McEntee (Apartment Law) and Tom Philips (Tom Philips and Associates).

Right: Bernadette Lydon, Gore Grimes; Sally Alford, Gore Grimes; Gemma Forde, Kieran Murphy Below: Rosaleen Esmonde, Matheson; Claire Ryan O’Connor Sols.

Left: Michael J Kennedy, Michael J Kennedy & Co.; Maureen Black, M.P. Black & Co. Sols.

Left: Christina Sauer-Dechant Charltons; Elaine Cox, Reidy Stafford Sols.; Catherine Bradley, Hopkins & Co. Below: Mary Henry, Mary Henry & Co.; Sarah Phelan, ESB Above: Eoin McGuigan, Collins Crowley; Sadhbh Burke, Collins Crowley Right: David Murphy Corrigan & Corrigan; Barry Fox, CB Robinson

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Spring 2015 dsba.ie

Litigation Seminar

Photography: Paul Sherwood

The DSBA litigation committee hosted a seminar on February 24th 2015 entitled The New Court of Appeal - Rules and Operations and Guidance on Appeal Costs.

The speakers were Mr Justice Sean Ryan, Eoin Martin BL and Brendan Cooke.

Above: Mr Justice Sean Ryan, Brendan Cooke, Eoin Martin BL Left: Stephen MacKenzie, Joanne Campbell

Right: Keith Walsh, Thomas O’Rourke Far Right: Joe MacKenzie, Caoimhe McConnell, Stephen MacKenzie

Left: Jennifer O’Riada, Brendan Byrne Far Left: Helena Walsh, Rowena McCormack, Gearoid Carey Right: Aimee Lenehan, Margaret Muldowney Far right: Ruadhan Kenny, Joanne Cooney

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23/03/2015 19:21

Closing Argument Stuart Gilhooly

Stuart Gilhooly is a partner at HJ Ward & Co Solicitors and former president of the DSBA

800 Years and Still Going

I

t’s far from the Magna Carta that this column was brought up. We usually tend to leave weighty matters of legal history to those who actually read books about it but seeing as Wikipedia can be relied upon to make any ’ould column appear an expert on pretty much any subject (as long the mischief makers haven’t been inserting porky pies into this most reliable of reference materials), then we thought we’d give it a go.

Before the eyes glaze over and think we have turned into a poor man’s Diarmaid Ferriter, chill for a second. The history bit won’t take long and we will shortly be back in Kansas, Dorothy.

Eight hundred years is a while ago now so maybe it shouldn’t come as a surprise that when England was labouring under the brutal reign of King John, there were actually no laws in place to prevent the unpopular king from riding roughshod over the feudal barons and what they perceived to be their rights and money.

The monarch met the leaders of the rebel barons, who were threatening to rise up at him, at Runnymede on June10th 1215 and agreement was reached five days later which saw the first steps towards the rule of law taken albeit tentatively and initially unsuccessfully. The formal document known as the Magna Carta (or Great Charter) was issued on June 19th.

Refusal to bore this column’s loyal and much put upon readers to tears forbids us from providing any details of its contents but suffice to say it provided a very basic template for a set of laws and rules by which the Crown and its subjects were to adhere.

This didn’t last long and both sides in

fact largely ignored its contents but the foundations had been laid for what would become the first unofficial attempt at creating the concept of the rule of law.

It has evolved hugely over the next 800 years and, although reissued many times since then, the charter has, of course, currently got no practical significance other than as an excuse for some lawyers and historians to cross thresholds of pomposity hitherto unexplored.

It’s probably fair to say though, that without it, or a successor, we would all be earning a crust in a different profession.

Although some rule of law was ultimately inevitable, the fact that history can tell us quite clearly of a time when none existed, and one which wasn’t that long ago in the grand scheme of things, should give us some pride.

Because we are now guardians of the Magna Carta, or at least whatever rules, laws and rights have ultimately flowed from this initial stab at law-making.

The importance and effect of the role we play can be seen each day on every website, newspaper and television. When was the last time you turned on the 9 o’clock news and there wasn’t at least three stories emanating from the courts?

As this column is being written, some of the biggest stories in Irish media of the last month have been court cases involving Graham Dwyer and Rory McIlroy. Although neither of them seeks the limelight, Jonathan Dunphy who represents Dwyer and Eoin McNeill who acted for the world’s best golfer, took on cases of a lifetime and have seen their clients attract global headlines.

The fame (or indeed infamy) of their clients

It’s probably fair to say though, that without it, or a successor, we would all be earning a crust in a different profession

will be of no concern to them but the mere fact that their clients, for very different reasons, were facing monumental court cases with huge consequences for them meant they were relying on their expertise.

This applies to all of us who take a set of instructions from a client. Whether or not they are a household name, and most obviously aren’t and never will be, the outcome can vary from quite important to absolutely critical to a person’s life.

If you spend time in the Four Courts or the CCJ, whether or not it is a regular haunt, take a minute to sample the atmosphere. It isn’t the Aviva or even the National Concert Hall but there is a discernible buzz. It’s the sound of people’s lives being changed, of huge decisions being made or court orders causing devastation to one or both party’s existence.

And it doesn’t need to be in a courtroom.

A transaction to buy or sell a house, one of the most basic commodities we sell, can be hugely complex but also the single largest moment of a person’s life.

Like most jobs, we often take what we do for granted and are unable to step back and look at the magnitude of our responsibilities.

After a time, we become inured to the routine nature of what others see as special expertise.

While this is never a reason for arrogance, (after all most employment requires abilities that we, as lawyers, don’t have) it should be a cause for celebration. And pride.

As a famous man once said – “with great power comes great responsibility”. Who was that? Churchill, Wilde, Twain?

No. Spiderman. Told you we’d back in Kansas soon, Dorothy. P

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IF YOU FEEL LIKE THIS JUST TRAMPLED ON YOU

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Consult a Colleague now in total confidence

Call us on 01 284 8484 All calls to the Consult A Colleague helpline are treated in the strictest confidence - there is no need to give a name or number.

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