D UB LIN SOLICITORS’ B AR ASSOCIATION MAGAZ INE | S UMMER 2015 | ISSU E 64
THE DEV L’S IN THE DETA L Possession Case Victory
NEW COMPANIES ACT - WHAT YOU NEED TO KNOW DSBA PRESIDENT AARON McKENNA CROSS-EXAMINED
Documatics FP.indd 1
Summer 2015 dsba.ie
From the Editor
elcome to the summer edition of the Parchment. I am pleased to have such terriﬁc articles from solicitor colleagues who give voluntarily of their time to pen contributions. I welcome articles from new and previously unpublished colleagues on a range of legal issues and topics relevant to our profession. Please just send me an email – our next deadline is mid September for the autumn edition of the Parchment. The new Companies Act is now in force just over four weeks and there’s much to consider in light of the changes made to the legislation. Simon O’Neill’s article in this edition is a very useful guide to what you need to know and how to prepare for the ‘transitional period’ over the next 18 months. The new Act provides for the consolidation of existing company law and re-organisation of the law relating to companies. Congratulations are extended to the winners of the recent annual DSBA Book Awards, which took place at a glittering ceremony hosted by the DSBA. Minister
for Justice and Equality, Frances Fitzgerald, TD, was guest of honour on the night and she heaped praise on the nominees and the winners, describing their new writings and new thinking as immense contributions to the legal profession. Minister Fitzgerald said that she expects the Legal Services Bill to be in place come the autumn. The gradual upturn in the economy seems to be beneﬁtting most practitioners as the number of new instructions and transactions is thankfully on the rise. However, the upcoming summer break will be relished by us all, as some time out and away from clients and paperwork to spend time with our own families and friends, will be cherished. Have a great summer.
John Geary firstname.lastname@example.org
DSBA COUNCIL 2015
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
VICKY PIGOT Chair - In-house Lawyers Committee
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, 1st Floor, 54 Dawson Street, Dublin 2. DSBA OFFICE, T: 01 670 6089 F: 01 670 6090 E: email@example.com 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.
the Parchment 1
20 Minutes with...
Flagrant Disregard of Planning Laws
Killian Morris talks to Tom Baldwin of Early and Baldwin Solicitors, Fairview
I finally left to pursue my career as a solicitor’s apprentice as otherwise I’d now be a Benedictine monk! page 6
20 MINUTES WITH... TOM BALDWIN
Niall McCarthy assesses a recent decision clarifying the position in relation to the court’s discretion to enforce planning laws
Leases without a Bank’s Consent - Enforceable?
Book Award Winners
The Companies Act 2014 Reviewed
Mark Heslin looks at issues arising in light of statutory and common law principles
We celebrate the best in Irish legal writing for 2015
Simon O’Neill outlines what directors and secretaries need to understand in preparation for the transitional period of 18 months
Revenue Insight Finola O’Hanlon and Brian Broderick check Revenue activities in 2014
Dublin Solicitors’ Bar Association 1st Floor, 54 Dawson Street, Dublin 2, Ireland T: 01-670 6089 E: firstname.lastname@example.org W: www.dsba.ie
2 the Parchment
06 01/07/2015 14:48
Summer 2015 dsba.ie
REGULAR FEATURES 01 Editor’s Note 04 President’s Message 50 News 54 DSBA Younger Members 57 Photocall 64 Closing Argument
Periodic Payments Orders Overview Mary Hough considers the impact for those who have been catastrophically injured
Double Relief or Double Jeopardy?
Keith Walsh interviews DSBA President Aaron McKenna
Ben Mannering reports on a High Court case that has put a stop to dual litigation
Holiday Pay and Overtime
Richard Grogan examines overtime in context when calculating holiday pay
Devil in the Detail
How effective is your website?
Susan Martin reports on the recent case where the issue of the ‘rateable valuation of a property’ caused an upset for the lending institution
Greg Ryan finds out what to consider when creating a website for your business
Online Dispute Resolution
Regulation of Debt Management Firms
Joan Callan examines a UK report on alternate ways to solve disputes online
Simon O’Neill looks at the Central Bank’s recent review of debt management firms
Aaron McKenna DSBA President cross examined the Parchment 3
Message from the President
An evening with the Minister for Justice
he good weather has arrived and with it the annual DSBA dinner dance and DSBA Law Book Awards, which proved to be a fantastic success again this year. We were very grateful to have the Minister for Justice and Equality attend on the evening to address the guests and to give out the all-important awards to the winners. Successful candidates in the categories were worthy winners and I would like to thank the sponsors, publishers and all the council members of the DSBA for making the night a great success and for giving up their time so generously, as they always do. We are delighted to have such close relations with the Minister for Justice and Equality who has throughout her tenure, operated an open door policy with the profession and with the Dublin Solicitors’ Bar Association. We hope that this will continue. We wish her well for what we hope will be a long time to come in her very challenging role. Our annual conference to Berlin is nearing the 100 attendees mark and is proving to be a great success in terms of the numbers, and momentum is gathering as we attend to the finer details of what promises to be a fantastic weekend away in one of Europe’s capital cities. There are still a few places left for this event which provides one of the rare occasions where we will be able to have dinner at the Reichstag, the head of German Government. I want to thank all of our big firm members, most of whom we have had the opportunity to visit, that is my vice president and I, over the past months. I’d like to thank them for their continued support and to get feedback from them in relation to how the profession is doing from their perspectives, and I get the general feeling that there is a sense that things are improving for us all in both the big firms and, indeed, the small ones and this is indeed welcome news. Finally I want to thank Maura Smith “again”, for all of her efforts in overseeing the big office move from Harcourt Street to 54 Dawson Street and for making it a smooth and efficient process. The new offices are fantastic, well fitted out, very well appointed, open and very much ready for business. I
I get the general feeling that there is a sense that things are improving for us all in both the big firms and, indeed, the small ones and this is indeed welcome news want to wish all our members all the best for the summer vacation, when it arrives, which will be a very well earned break by all accounts. Aaron McKenna, DSBA President
4 the Parchment
Wouldn't it be nice to be told when Provincial Circuit Court Lists were published? Or when they issue the High Court Call-Over? Would it be helpful to know when motions were filed against you before they were served? Or when Orders are perfected? Over 500 litigators no longer need to spend time on courts.ie looking for information that may or may not be there - because we send it to them and itâ&#x20AC;&#x2122;s tailor made to their specification. S av e t i m e , r ed u c e r i sk , s tay a h e a d of t h e g a m e
An Ir ish c ompa ny by solicitors for solic itors
32288_My legal Diary FP.indd 1
Tom Baldwin of Early & Baldwin Solicitors
6 the Parchment
Summer 2015 dsba.ie In conversation with Killian Morris of AMOSS Solicitors
20 Minutes With...
I decided I�d never act for any bank or insurance company. No doubt I�d be a wealthier man if I did so, but I made this decision on a matter of principle
Tom is a principal of Early & Baldwin Solicitors. He is a blogger, prolific Twitter user and formerly wrote a column for the Irish Daily Star. Tom is currently involved in the Right2Water campaign
When did you qualify? I qualified in the Michaelmas term 1980. Prior to that I’d been the director of the Free Legal Advice Centre in Ballymun. Inge Clissmann SC, got me involved with FLAC and during my time with them, I became aware of the great many social problems facing our society and the great need for lawyers to become involved on such issues. If you hadn’t become a solicitor what would you have done? Good question. My dad was always my hero. He had been one of the bosses in British Railways, now Sealink. While growing up, I suppose I thought I would like to work with him. He was a member of the Irish Transport & General Workers Union, latterly SIPTU and many a meeting was held in our house. I got a great education for life just listening to the many discussions and arguments that went on. That said, while in Sandymount High School, I picked out two blue leaflets in careers class. The first one was ‘How to become a Solicitor’ while the other one was concerned with the laying of poles with the Department of Posts and Telegraphs!
Have you any funny anecdotes from your time as a trainee/apprentice? I was apprenticed to a law firm in Dundalk. My dad was a Dundalk man and as it wasn’t easy to become apprenticed in the mid 1970s, both he and my uncle Bernie contacted all the solicitors they knew to try and get me sorted. They eventually got one. When it came to the signing of indentures with him and after my dad parting with a not unsubstantial sum of money to this gentleman, he called in another solicitor from a firm nearby to sign the papers. It seems he already had a number of apprentices on his books! Some years later while representing clients as a director of FLAC, we were in Rathfarnham District Court, when the District Justice decided to refuse to hear any more FLAC cases. He said that unless there was a qualified solicitor present, that we couldn’t represent clients before him. I suggested to all that I proceed with all the cases for FLAC. When I stood up on the first case, the District Justice asked was I qualified. I said ‘No Justice’. He then asked me who my master was. I replied ‘You Justice’. He went quiet for a number of
moments, realising that he had signed my indentures. We succeeded in having all the FLAC cases dealt with on that day. If we asked your best clients to describe you – what would you expect/hope they might say? I’ve overheard it said by some clients over the years, that they were glad I was on their side, not against them, and take this as a compliment. I am known not to tolerate fools. I have put together a first class team to deal with each case and as I’ve gotten older, I feel I’ve become less tolerant in my dealings with both solicitors and claims inspectors who it can seem, have become cynical in dealing with the suffering of injured people. It is our job to look after people in their time of need. The pursuit of manna cannot be the motivating factor as far as I’m concerned. Our clients deserve respect and justice – and it’s our job to deliver on both. What was the most memorable moment in practice? I suppose this must be the case of McAliskey v Independent Newspapers. That was a case where a Northern the Parchment 7
I have put together a first class team to deal with each case and as I�ve gotten older, I feel I�ve become less tolerant in my dealings with both solicitors and claims inspectors who it can seem, have become cynical in dealing with the suffering of injured people politician stood in Dublin North Central in a General Election against Charlie Haughey. Her campaign was going well until a leaflet was distributed to all houses in the constituency misquoting a passage from the Irish Independent. She had said at a press conference that if elected, she would press for legislation on divorce and contraception. The leaflet said that if elected she would campaign to legalise divorce, contraception and abortion! The late Vincent Landy SC was one of our team as well as Inge Clissmann and Conor Maguire SC. At the conclusion of matters Vincent took out from under his gown, a copy of my client’s book and in front of all present in the round hall asked her to sign it for him. She broke into a broad smile and duly signed the copy for him. If you were Minister for Justice for the day, what would you do? 1. Abolish the Injuries Board. 2. Abolish the Water Services. 3. Sign a commencement order for Section 60 (1) of the Civil Liability Act, 1961 4. Streamline employment legislation and shorten the waiting time for cases to be heard. Describe a typical day for Tom Baldwin? I am not known as an early riser. This could be because I’ve been known to work through the night. When I was raising
my young family, I tried to spend as much time as possible with them. Hence work through the night, leave them to school in the morning, then head to the office until it was time to collect them from school. I was lucky enough to always be my own boss, so I was able, with the help of my team, to have enough flexibility as regards time keeping. Children grow up so fast. Because of pressure at work, I realised when my eldest daughter Lisa was three, that I hardly knew her. I then made it a point to spend as much quality time with them as possible. Of course there were days when I had to attend court or see a client, but I did my best to spend as much time as possible with my children. I believe it is your time that children crave, not the pocket money they may get from you. I have a good team working with me in Early & Baldwin, so with modern technology and suchlike, it’s not always necessary to have a physical presence in the office. I work from home a lot and this allows me to spend time with my fourlegged children, Nala and Sam – my two young German shepherds. In the afternoon I’ll be in the office, dogs in tow. Manys a time I’ve arisen to shake the hand of a client for them only to discover that my dogs have been present during the consultation.
Always brings a smile to my face. What’s the most interesting case you were involved in? While perhaps not the most interesting, a case which has always stuck with me through the years was a matter that we settled back in 2002, after a ten-year battle for close to €1m. The case concerned an infant client and arose out of a road traffic accident where the child had suffered grave injuries. Liability was in issue and as I had young children of my own, this was a case close to my heart. What role should solicitors have in shaping public policy on social issues or as activists? In other countries, it is the lawyers who stand up for the ordinary man and are to the forefront in advocating for human rights. My father spoke to me on many occasions about the rights of workers and the uneven distribution of wealth throughout the world and indeed in our own country. I feel it is the duty of every lawyer to stand up and be counted. Where there is injustice, lawyers should do what is necessary to rectify this wrong. We are the people who are trained to fight for our clients’ rights. Throughout your years in practice, you will be confronted with issues which you must make a decision on. Do you help people or do you look the other way? Do you take on all cases that come across your desk or is there a moral issue at stake? In my blog LegalEagleStar I have written on such matters. One is entitled ‘The morality of lawyers acting for banks’. This is not a criticism of commercial lawyers but was prompted by an interview I heard one morning on Newstalk, where one of our colleagues made reference to the fact that his practice was growing because he was dealing with a better class of client these days – i.e. the banks. People have different political leanings and I acknowledge and respect that. In Ireland today, people are suffering, not always due to any fault of their own. The sight of family home repossessions, homelessness and the results of years of austerity imposed on the most vulnerable in our society, must move the consciences of us lawyers. How we deal with this is a personal matter but in my opinion, unless you stand up for people who are enduring unimaginable hardships, we are failing as a profession in protecting the rights of those who look to us for help. Without our help, their suffering can have diabolical consequences. Social media in 2015 Ireland – has its impact been exaggerated or has it become genuinely influential in driving social change? When I signed up for Twitter, Facebook and such like, I must admit I did so out of curiosity. Seeing so many people becoming involved, as well as being a father, I felt obliged to check it out. I must say my eyes
8 the Parchment
Summer 2015 dsba.ie
20 Minutes With...
Photography: Paul Sherwood
were opened. I have been privileged to meet many great people, from all aspects of society and engage with them on many issues. Early on I was invited to attend a Tweet Up in Cabinteely. I told my daughters where I was going and they laughed at me. I remember Rachel, my daughter who is a barrister, saying on my way out...‘no throwing the car keys on to the table dad!’ Well, I met an amazing group of people. About 16 people from all walks of life. Most have become genuine friends. With the emergence of the Right2Water campaign which is driven by social media, I have engaged with many people of differing political backgrounds and none, who hold varying views and opinions. It’s good to engage with these people. Those who know me will tell you that I’ve become involved in this campaign, not as a lawyer but as a concerned citizen. I put my views forward and engage with others on contentious issues. I’m not afraid to air my personal views and indeed will attempt to correct erroneous views put forward which denigrate lawyers and the judiciary. I believe it is us lawyers who must engage in social media to drive needed social change. Our politicians are answerable to us as citizens. We must hold them to account. Social media is achieving this like nothing before. I am somewhat concerned about Senator Lorraine Higgins proposed bill, the Harmful and Malicious Electronic Communications Bill 2015. From a reading of same I wonder how this bill will be used by politicians to silence debate on issues of public importance. As you can see, I do not trust politicians! Describe an event in your personal life, which has had the most impact on your practice as a solicitor? As a newly qualified solicitor I was eager to take on all work that came my way. I was approached by a nearby bank to do some debt collecting. When I viewed the list, it became apparent that most of the people on the list were old age pensioners living in the locality. I met with the assistant manager and handed him the list back. From that day forward I decided I’d never act for any bank or insurance company. No doubt I’d be a wealthier man if I did so, but I made this decision on a matter of principle. In no way is this a criticism of many of my esteemed colleagues who so act, that I’m lucky to count among my many good friends. It was a personal decision. What would be your dream holiday? I love the Texas hill country and have spent many a vacation driving from San Antonio to the many ranches and towns nearby. Saturday night would most definitely be spent at Texas Rodeo in Bulverde. There you meet great people. Honest to God folk who work hard for a living. To see the young men asking the girls up to dance with such
impeccable manners is just lovely. Reminds me of growing up in Dublin and Dundalk in the 1960s. Something most people don't know about Tom Baldwin? After becoming apprenticed in 1975, I broke my leg in a football match. I was in plaster up to my hip for over five months. During that time I was unable to do much and spent a lot of time reading. During this ‘journey’ I came upon Glenstal Abbey, a Benedictine monastery in Limerick. I stayed there ‘on personal retreat’ for about three weeks. I finally left to pursue my career as a solicitor’s apprentice as otherwise I’d now be a Benedictine monk! Any advice for those entering the
profession in 2015? Don’t do it, unless you have the determination to succeed in achieving a personal goal. Times are hard for a newly qualified solicitor or barrister these days. Unless you have the support of your family and/or are prepared to hold down an extra job or two, you’ll find it very difficult to pursue your career. Only one of my children, Rachel, has followed me into law. She is a barrister. She works extremely hard and has chiselled out a career for herself in dealing with family law, divorce and personal injury cases. Many of her fellow lawyers, both solicitors and barristers, have given up and are pursuing careers elsewhere. It saddens me to see the loss of such talent to our legal profession. P
the Parchment 9
Flagrant Disregard of Planning Laws - the consequences Niall McCarthy assesses a recent High Court decision which has clarified the position in relation to the court’s discretion to enforce planning laws, and he says this has brought much needed certainty to this area
n 2013, the High Court had refused to grant an order for demolition of a timber framed chalet in a wooded area of natural beauty at Lough Dan, County Wicklow on the grounds that this would represent a drastic interference with the inviolability of the dwelling and property rights. This decision gave rise to great uncertainty as to how one would resolve the conflict between protecting an individual’s property rights and enforcing proper and sustainable planning laws. In the case of Wicklow County Council -v- Kinsella & Anor,  IEHC 229 (2015) Mr Justice Nicholas J Kearns in the High Court heard an application by Wicklow County Council where they sought an order under s.160(1) of the Planning and Development Act 2000 as amended, restraining Mr Kinsella from continuing with an unauthorised development of lands and an order directing him to remove this unauthorised development, its concrete base and associated site works. The unauthorised development consisted of a timber chalet which had been erected for residential purposes without planning permission on lands bought by him and his sister which fronted on to the busy N81 road. In resisting the application
Mr Kinsella argued that the property was entitled to remain in situ pursuant to two decisions of the High Court, namely, Wicklow County Council v Fortune (No. 1)  IEHC 406 and Fortune v Wicklow County Council (No. 2)  IEHC 255. Wicklow County Council had previously expressed serious concerns about the 2013 judgement and indicated that it would have “far reaching consequences” for the enforcement of planning laws. In the previous case, although the High Court had found that the chalet was not built bona fide, it stated that the council had failed to show that the retention of the dwelling was manifestly at odds with important public policy objectives. In the present judgement, Mr Justice Kearns said the council believed that the Fortune case had created a “carte blanche” for individuals to build family homes where and how they wanted with “perceived immunity” from the demolition due to the constitutional protection of the home. When a warning letter was issued by the council in September 2012, Mr Kinsella said he was unaware that he needed planning permission because there was a structure on the site previously, but that he
10 the Parchment
Summer 2015 dsba.ie Niall McCarthy is a solicitor in the property and private client department of Hayes Solicitors
would seek retention planning permission. He failed to lodge a retention application within the eightweek period stipulated. In September 2012, when an inspection was carried out by the local authority, it was confirmed that works were still ongoing on the chalet and an enforcement order duly issued. Further inspection in April 2013 found that the chalet was occupied and the council told Mr Kinsella in June 2013 they had initiated proceedings for the removal of the unauthorised development. An application for retention permission was made three days before the High Court return date, but was subsequently refused by both Wicklow County Council and on appeal, to an Bord Pleanála. Traffic hazards in close proximity to the chalet were identified as the reason for refusal of retention permission and there was no realistic prospect that the hazard would abate in the short term. The council also argued that Mr Kinsella built and completed the dwelling and occupied it without any planning permission and in full knowledge that the council regarded it as unauthorised and illegal, and this was ultimately accepted by the court. The High Court made an order for full enforcement under section 160, which permits the removal of
Without effective planning laws and adequate enforcement procedures to ensure compliance with them, anarchy would rule the roost
the unauthorised development and held that it was appropriate and proportionate in this case where the development was “unauthorised and undertaken with full knowledge that planning permission was required”. It also confirmed that the planning acts modify property rights which might otherwise be enjoyed under the Constitution, in the interests of proper planning control, by removing the right to establish or alter dwellings except in accordance with planning permission. He further added effective planning control “depends on public compliance and acceptance of the rules” and having effective measures to ensure compliance. He invited the parties to make submissions to him in relation to the timescale for the demolition works. This decision brings much needed clarity to the area and reinforces why we have planning laws and why they must be enforced. To summarise using the words of Mr Justice Kearns, “in one sense, the reason is obvious: without effective planning laws and adequate enforcement procedures to ensure compliance with them, anarchy would rule the roost with regard to all sorts of developments. In short, there would be nothing to stop a “free for all” development culture from running riot”. P the Parchment 11
Letters to the Editor
Spring Parchment front cover Dear Editor I have just seen the cover of the latest issue of the Parchment and read Stuart Gilhooly’s gushing tribute to Muriel Wall. I would like to make the point that not all solicitors wish to wholeheartedly embrace the gay and lesbian culture and surprise surprise, some of us still support “old fashioned” christian principles when it comes to marriage, namely that marriage
should be between a man and a woman and for better or worse. May I respectfully suggest that in the interest of fairness and balance the DSBA refrain from taking sides in the forthcoming referendum – although it looks as if that may be too late now – and leave it to its members to decide what way they wish to vote in conscience or otherwise. Yours respectfully, Michael O’Dwyer, BCL, solr
Employers Beware! Dear Editor It is evident in recent times that there appears to be growth in the jobs market once again. Newspapers and social media sites are awash with tips for the interviewee from how to put your best foot forward, polish your CV and look your best. However, it is disconcerting to hear war stories from colleagues attending interviews about the lack of interview etiquette of employers. It may have been some time since there were jobs available but it would seem that many employers have forgotten the basic pointers. Here are some helpful tips gleaned from a number of members’ recent bad experiences that are worth bearing in mind for the prospective employer. • DO send an acknowledgment email to the applicant. It can be a simple generic email to all applicants to say they will be called if they make the shortlist. You asked for applicants, the very least you can do is acknowledge receipt of applications. • BE speciﬁc in your advertising. If you are looking at speciﬁc levels of PQE only, please state it in the advertising. • BE sure you actually have a vacancy. Many colleagues have reported been called to interview only to be told “we are not sure we have a position yet but we are considering it”. You are unfairly wasting the applicant’s time. • BE speciﬁc on the job spec. There’s nothing worse than attending an interview where the employer says “we are not sure on the extent of the role yet”. Then why have you advertised? And how is an applicant meant to know what they are actually applying for? • DON’T rely on past glories. The market has changed and ﬁrms have changed.
It is up to YOU to sell the job to the applicant, otherwise they will not want to work in your ﬁrm. Why would anyone want to spend the majority of their day with someone who can’t be civil at an interview? BE clear on the salary you are willing to pay versus PQE. If you know you can’t aﬀord the applicant don’t invite them to interview. PUT your interview appointments into your diary and set reminders. There is nothing worse for an interviewee than to arrive at a ﬁrm where the employer has forgotten about the appointment and is either uncontactable or clearly not ready. DO your research and read the CV before the interview and have a list of questions you want to ask. It is very obvious to an applicant when an interviewer is bluﬃng their way through an interview. Is this the image you want to present of you? DON’T ask someone to an interview just because you want to pick their brain on how your competitors are doing things. It has happened. DON’T ask the questions you know you shouldn’t. Whether the applicant is married, has children or has suitable childcare is none of your business. DON’T eat your lunch at the interview. If you set up at lunchtime interview have respect for the applicant and eat your lunch on your own time. Nobody wants to see an interviewer picking food out of their mouth or talking with their mouth full. DON’T regale the applicant with stories on how hard the last few years have been or how hard you have to work or on how you are losing clients. An interview is a two-way street. Nobody wants to work in a negative atmosphere. MAKE sure your reception area and boardroom look tidy and good. Seems like
an obvious one but it doesn’t bode well if there is no-one at reception to greet you or there are bulbs missing from light ﬁttings or reception feels like the Arctic Circle. If an interviewee notices this lack of attention to detail, what must your clients think? DON’T looks for salacious details from the applicant’s career. Members have reported being asked if they sued their former employers after the redundancy crisis or whether somebody was as diﬃcult to work with, in line with rumours. This is just unprofessional. GIVE fair timelines. You may not have managed your time correctly and are in desperate need of an employee, but you need to realise applicants need to take time oﬀ to come to interview and time to prepare. BE RESPECTFUL – you are oﬀering a job. You have called the applicant to meet them as you are interested in them. They have prepared, dressed up, often taken time oﬀ to meet you. The least you can do is aﬀord them the same courtesy. MAKE sure you let the applicant know after each stage of the process if they are successful in moving forward. There is nothing worse than sitting a number of interviews and/or psychometric tests only to never hear from the prospective employer again. This is more common than you would think. This is the height of bad manners and a colossal waste of the interviewee’s time. If you can’t face making that awkward call then at the very least an email will suﬃce. You will come across this colleague again so you want to leave them with a positive lasting impression.
Yours, etc... (Name and address with Editor)
12 the Parchment
SHOULD YOU HAVE USED ENKI? WWW.ENKI.IE NEW ONLINE CLOSING SEARCH ✔ Registered and Unregistered Properties ✔ Instant Hassle free Service ✔ Innovative, Transparent User Friendly Process ✔ Fully bonded 6.5million per case ✔ Monitored Daily ✔ Updated in Real Time
53 Dawson Street, Dublin 2, Ireland Phone: 01 488 0990 Email: email@example.com Web: www.enki.ie
I Negotiate Settlements With Banks
Finnan Financial Limited is regulated by the Central Bank of Ireland
Leases without a Bank’s Consent Enforceable? Irish courts have increasingly been asked to determine applications where a bank, or its receiver, seeks possession of property occupied by a tenant who claims an entitlement to remain under a lease granted by a mortgagor, without the requisite consent of the mortgagee. Mark Heslin looks at issues which can arise for the relevant parties and those who advise them, in light of statutory and common law principles
Leasing Powers At common law, both a mortgagor and mortgagee have long had the power to lease land (See Iron Trades Employers’ Assurance Association Ltd –v- Union Land and House Investors Ltd.  Ch. 313 at p 317, Farwell J). Historically, a lease by a mortgagor, although binding as between the lessor and lessee, would not prejudice the mortgagee’s ability to recover possession of the secured property (See JC Wiley, “Law of Landlord and Tenant” 2nd Edition, paragraph 6.10). However, certain provisions of section 18 of the Conveyancing Act, 1881 (“the 1881 Act”) conferred a statutory power of leasing upon both a mortgagor and a mortgagee which could be exercised while either was in possession of the land in question. Section 18 (1) of the 1881 Act provides that: “A mortgagor of land while in possession shall, as against every incumbrancer, have, by virtue of this Act, power to make from time to time any such lease of the mortgaged land, or any part thereof as is in this section described and authorised”.
Contrary Intention Thus, a lease granted by a mortgagor pursuant to the power conferred by the 1881 Act will bind a mortgagee. Importantly however, sub-section (13) of section 18 of the 1881 Act provides that: “This section applies only if and as far as a contrary intention is not expressed by the mortgagor and mortgagee in the mortgage deed, or otherwise in writing, and shall have effect subject to the terms of the mortgage deed or of any such writing and to the provisions therein contained”. In the 1994 case of ICC v Verling & Ors.  1 I.L.R.M 123 P (Lynch J) the High Court considered
an application for a mandatory interlocutory injunction to recover possession of an “off-licence” premises which the first named defendant had let to the third named defendant without the plaintiff’s consent. Two years earlier, the first named defendant had executed a mortgage in the plaintiff’s favour which stated that “During the continuance of this security the statutory and other powers of leasing, letting, entering into agreements for leases or lettings…shall not in relation to the mortgaged property or any part thereof be exercisable by the borrower…without…the prior consent in writing of the lender…” In granting the relief sought, Lynch J held that this clause was sufficient indication of a “contrary intention” so as to exclude the statutory power of leasing conferred by the 1881 Act.
N17 Electrics More recently, in Fennell & Anor v N17 Electrics Limited (in liquidation) - 2012 IEHC 228, the applicants sought a declaration from the High Court that a “business lease agreement” granted by the owner of a Galway premises, in favour of the respondent company, was not binding on them. The applicants relied on the contents of four charges in favour of the bank executed by the owner/ mortgagor prior to purporting to grant the lease. In each charge, the mortgagor agreed that he would not “except with the prior written consent of the bank …part with, sell, convey, assign, transfer, lend, lease or otherwise dispose of…” the relevant property. No prior written consent had been given. What the court described as “to say the least an unusual form of document” stated that both parties agreed to be bound by further terms and conditions, none of which were specified in the agreement. It was also accepted that the rent payable by the company to the borrower/ mortgagor was, in fact, a multiple of the €30,000 specified in the lease.
14 the Parchment
Summer 2015 dsba.ie
Landlord & Tenant
Mark Heslin is a partner at Beauchamps Solicitors
Knowledge is not Consent The bank accepted that a copy of the business lease agreement had been located on its files and the court was satisfied that the bank was at all times aware of the fact that the company was in occupation of the premises. The May 11th 2012 judgment by Ms Justice Dunne, granting the declaratory relief sought by ACC and its receiver, contains a comprehensive analysis of previous authorities from which her Lordship summarised certain key principles as follows: “I think, first of all, that it is clear that a mortgagor and a mortgagee can expressly agree to exclude the power conferred by s.18 of the 1881 Act. If the power is excluded, it may be done in a way that permits the mortgagor to grant a lease subject to the prior consent of the mortgagee. If such prior written consent is not obtained by the mortgagor and the mortgagor proceeds to enter into a lease with a tenant, the lease will be binding on the mortgagor as lessor, but as against the mortgagee, the lease will not be binding. It is also clear that in certain circumstances, the lease may be binding on the mortgagee in circumstances such as those described in the authorities referred, where, for example, the mortgagee “serves a notice on the tenant to pay the rent to him”. It is also clear from the authorities referred to above, that the mere fact that the mortgagee is aware of the existence of a tenancy and that a tenant is paying rent to the mortgagor which is being used to pay the obligations of the mortgagor to the mortgagee, is not, of itself, sufficient to create a relationship between the mortgagor’s tenant and the mortgagee.”
No Commercial Reality Ms Justice Dunne saw no reason to depart from what the court described as well-established authorities, commenting that: “From the bank’s point of view in this case, there was no
Historically, a lease by a mortgagor, although binding as between the lessor and lessee, would not prejudice the mortgagee’s ability to recover possession of the secured property commercial reality apparent in the business lease agreement. It is inconceivable that the bank would ever have consented to a lease in the terms of the business lease agreement had it been asked to do so. Its conduct in granting loans from time to time without appropriate leases having been put in place does not alter the position.” In Ferris v Meagher & Anor.  IEHC 380 Mr Justice Birmingham considered an application by a receiver for a mandatory interlocutory injunction to recover possession of property owned by the first named defendant who had created a lease in favour of the second. The requirement for prior written consent was a provision in two mortgage deeds executed in 2000 and 2003, which explicitly excluded the application of sub-section (1) of Section 18 of the 1881 Act. No consent had been obtained in relation to the lease which also contained what the court described as “some noteworthy features”. the Parchment 15
she would take a monthly tenancy of the premises from her husband and son. She also claimed that the lender (IBRC) had acquiesced in this tenancy, given that she continued to run a business from the property and had paid the “rent” due to her husband on foot of the alleged tenancy, directly into his account with IBRC. Referring to Dunne J’s conclusions in N17 Electrics, Peart J held that: “It is hard to avoid the same conclusion in the present case, particularly in circumstances where there was not even a written agreement between the defendant and her husband and son, which might at least have stood some chance of containing terms which the bank might have given its approval to had it seen them.”
Acquiescence Mr Justice Peart’s decision is also useful in relation to his view of what could constitute acquiescence. He put it as follows: These included the fact that, although the lease was dated April 30th 2012, it was not stamped until January 28th 2013, being some six weeks after the appointment of a receiver.
In the absence of special circumstances, where a mortgagor’s powers to grant a lease under the 1881 Act have been explicitly curtailed, a lease granted without consent will not be enforceable against a mortgagee
Trespasser Citing with approval Judge Dunne’s decision in N17 Electrics, Birmingham J considered the facts to be similar in many respects to those in ICC v Verling and held that the relevant defendant “…has not made out an arguable defence. It has no entitlement to remain in occupation and is a trespasser. On that basis, the plaintiff is entitled to the order that it seeks without the necessity of considering the Campus Oil principles”.
Void against the Mortgagee In Maloney v O’Shea & Anor.  IEHC 354, the mortgagor averred that a company was incorporated, and a lease granted to it, on the advice of professional accountants and for prudent business reasons. Laffoy J found the explanation of the objective for the incorporation of the company and of the creation of the lease in favour of it to be “wholly plausible”. Furthermore, the lease was granted by the mortgagor almost a year prior to the appointment by the bank of the receiver over the property. Notwithstanding the bona fide the reasons for the grant of the lease in question, Laffoy J granted a mandatory interlocutory injunction requiring the tenant to deliver up possession to the receiver in circumstances where the lease had been granted without the mortgagee’s consent. Citing with approval, Ms Justice Dunne’s decision in the N17 Electrics case, Laffoy J held that: “… what the academic commentary and the authorities indicate is that a lease created by a mortgagor without the consent in writing of the mortgagee, where the requirement of such consent is expressly stipulated for in the mortgage deed, is void as against the mortgagee and the mortgagee is not bound by it.”
Verbal Agreement In Murphy v Hooton  IEHC 266, Mr Justice Peart considered an application by a NAMA-appointed receiver to recover property in circumstances where the debtor’s wife claimed to have reached a verbal agreement that
“In my view, the evidence of acquiescence or even consent must be clear. It must be clear also exactly what the terms to which they are deemed to have accepted are…Where it is sought to imply by its conduct that the lender has acquiesced or given up its entitlement to the protection of such a clause, the facts must be clear so that an intention to do so is clearly made out, in circumstances where the need for a prior written consent is so clearly spelt out. The onus is on the defendant to establish these matters clearly.” A tangible example of such conduct was referred to by Lynch J in ICC –v- Verling where, on the topic of acquiescence he commented that “The plaintiffs have never acquiesced in or recognised the lease by any express or positive conduct such as by demanding or accepting rent thereunder in place of the first defendant”. In NALM & Ors. v Southlodge Inns Limited & Anor.  IEHC 109, the plaintiffs sought a mandatory interlocutory injunction to gain possession of a public house in Clonskeagh. Receivers were appointed in April 2014 and sought possession which was refused on the basis that the first named defendant company claimed an entitlement to remain under the terms of a two-year lease granted by the second named defendant in January 2014. The mortgagee’s consent had not been obtained but the defendants argued that the plaintiffs had recognised the validity of the lease. White J granted the injunction, referring to Moloney v O’Shea as well as ICC v Verling and quoting at length from Ms Justice Dunne’s decision in N17 Electrics.
Conclusion The law in this area is now settled. In the absence of special circumstances, where a mortgagor’s powers to grant a lease under the 1881 Act have been explicitly curtailed, a lease granted without consent will not be enforceable against a mortgagee. At the heart of the jurisprudence is the principle that a party will be held to the terms of the contract which they entered into. As Lynch J put it succinctly in ICC v Verling: “…mortgagees….are entitled to place some reliance on their mortgagors not flagrantly to ignore and breach their solemn covenants entered under hand and seal…” P
16 the Parchment
Your personal secretary… 24/7 Background
100% UK & Ireland based
Document Direct is the UK’s premier outsourced typing and document production service for the legal and medical sectors. Because we do this as our core business we do it incredibly well, cost effectively and fast, and can pass these benefits on to your business. We take pride in our 99-100% document accuracy, can turn around documents within the hour, and offer 24 hour, 365 days a year support at a flat rate. More than this, we work with partners to design a process that really works for them – that makes the change to outsourced services an easy and positive experience as well as a sound business choice.
Your dictation, templates and completed typing is accessed and processed securely only by typists who are based in the UK and Ireland and who are Police/Garda checked.
Confidentiality and security We are accredited with ISO 27001:2013 The international
Security Management Systems. We have been externally audited four times and can answer
The tailored solution
detailed questions upon request about our
We will provide you with apps for your smartphone, both iPhone and Android phones. The app will enable you to record your dictation as if you were using a dictation handset and your dictation will be sent securely from your phone, over the internet connection (whether that is 3G, 4G or wifi) directly to the Document Direct typist team.
sign a confidentiality agreement.
security controls and processes. All our typists
Turnaround times We are open for business 24 hours a day, 365 days a year. You can choose how fast you
We have copies of your templates stored securely in our systems, so you need only dictate, for example, ‘do a letter’ and our team will know to use the correct template and transcribe and format your typing just as you like it.
need your typing to be completed. In a lot of
Your completed documents will be returned to an email address of your choice, which could be directly to yourself or to an admin point in your office.
turnaround times or “out of office hours”.
cases we can complete urgent work within the hour (or faster for short dictations). There is no increase in price for choosing urgent
Systems and compatibility If you prefer to use your current digital dictation system you can choose which
How to contact us for help
dictations you would like to be transcribed by
If you have any difficulty with using our app or simply want to send a new template to us please call our customer support number at any time 0044 845 340 3031 or email firstname.lastname@example.org. Both are available 24 hours a day, 7 days a week.
your in-house secretary and which you wish to outsource, thereby enabling you to make full use of our flexible outsourced secretarial service.
Eoin Glynn Business Support Manager 085 8531680 Eoin.Glynn@documentdirect.co.uk Law Chambers, Village Square, Tallaght, Dublin 24
32293_John Glynn FP.indd 1
Cert No 10046 ISO 27001:2013
Annual DSBA Book Awards For the second year, the prestigious annual DSBA Book Awards ceremony celebrated the best of legal writing over the past 12 months. Minister for Justice and Equality, Frances Fitzgerald, TD, was the guest of honour and presented the winners with their much-deserved awards
he minster said it was a great pleasure for her to be in attendance and congratulated the short-listed nominees. She said she was most impressed with the issues covered by those shortlisted. “All the books are testimony that the law in its application and interpretation is organic and does not remain static. These books are new writing from an array of new thinkers. Well done to all.” Commenting on the Legal Services Bill, Minister Fitzgerald said that there were “ongoing discussions
with the professions” and she said “I hope to have the new legislation in place when we come back after the summer recess.” The impressive shortlist of authors highlighted the breadth of talent in legal writing and the judges found it a difficult task to pick a winner in each of the three categories which were as follows: • Law Book of the Year Award, sponsored by ByrneWallace Solicitors. • Practical Law Book of the Year Award, sponsored by Peter Fitzpatrick & Company Cost Accountants; and • Outstanding Contribution to the Law, sponsored by Law Society Skillnets. In an impressive and crowded field of nominees for Law Book of the Year which included Employment Law (Frances Meehan/Roundhall Thomson Reuters), Evidence 2nd Edition (Declan McGrath/Roundhall Thomson Reuters), Law and Government - Tribute to Rory Brady (David Barniville, Blathna Ruane and James O’Callaghan/Roundhall Thomson Reuters), Local Authority Enforcement (John Morrisey/Bloomsbury Professional), Police Powers (Garnet Orange/Bloomsbury Professional), Evidence in Criminal Trials (Liz Heffernan and Una Ní Raifeartaigh/Bloomsbury Professional), Defamation Law & Practice (Neville Cox and Eoin McCullough/Clarius Press) and Social Networking Law (Paul Lambert/Clarus Press) - the worthy winner was Landlord and Tenant Law by Professor John Wylie. Catherine Guy, managing partner of Byrne Wallace together with Jennifer Simpson of Bloomsbury were on stage with Professor Wylie when the Minister for Justice and Equality presented him with the coveted award. In accepting the Law Book of the Year Award, Professor Wylie said that he dedicated the award to his
18 the Parchment
Summer 2015 dsba.ie Photography: Paul Sherwood
late dear friend, John Farrelly, SC, and to his memory. The Practical Law Book of the Year Award was sponsored by Peter Fitzpatrick & Company cost accountants and the nominees included Civil Procedure in the District Court 2nd Edition (Karl Dowling, Suzanne Mullaly, Brendan Savage/Roundhall Thomson Reuters), Enforcement of Judgments (Sam Collins, Declan McGrath/ Roundhall Thomson Reuters), The Taxation of Companies 2014 (Michael Feeney/Bloomsbury Professional), The Child Care Acts 1991-2013 (Paul Ward/Roundhall/ Thomson Reuters) and Summary Judgments in Ireland: Principles and Defences (Pat Barrett/Bloomsbury Professional). However, the judges’ choice for the winner of the Practical Law Book of the Year Award was Arthur Cox’s Employment Law Yearbook 2013. Jennifer Simpson from Bloomsbury Professional and Paul English from Peter Fitzpatrick & Co cost accountants joined the employment law team from Arthur Cox on stage to receive the award from the Justice and Equality Minister. Seamus Given, partner in the employment law team at Arthur Cox accepted the award on behalf of all involved in the publication. The Outstanding Contribution to Legal Scholarship Award – in collaboration with Law Society Skillnets was awarded to Law and Government – A Tribute to Rory Brady with editors, David Barniville, Blathna Ruane and James O’Callaghan (Roundhall Thomson Reuters). All three editors came to the stage to accept the prestigious award from the Minister for Equality and Justice. They were joined by Siobhan Brady, wife of the late Rory Brady and Conor McGuill of Law Society Skillnets. Jim O’Callaghan spoke very fondly of the late Rory Brady, the former Attorney General, Chairman of the Bar Council and highly sought after senior counsel who hailed from the Liberties in Dublin. “Rory had an ability to get to the point quickly, unlike many lawyers. He hated waffle. He had an ability to make complicated matters simple and was so respected and endeared by the judiciary because he would present his case in a simple way and the judiciary knew they would save time and energy as a result.” Jim O’Callaghan paid a fitting tribute to the late Rory Brady, remembering how he had attended for an interview with Rory Brady in the Chancery Inn bar. “He told me what type of practice he had. I was charmed by his bluntness and directness. He didn’t ask me any questions at all about me. Except for when we were leaving, he asked me if I had any convictions!” Minister Frances Fitzgerald said that there was real poignancy to the legal scholarship award. “This is so beautifully compiled. Well done to the three editors who did such a great job in bringing this publication to fruition. Rory Brady was well loved. He was a person who served his community and his country on so many levels including as Attorney General and as Chairman of the Bar Council.” The awards ceremony and dinner was a tremendous success and a great night was had by everyone in attendance. P
DSBA Annual Book Awards
Winner of the Law Book of the Year Award was Professor John Wylie for his book Landlord & Tenant Law, third edition. Pictured left to right were: Catherine Guy of Byrne Wallace Solicitors (sponsors), Jennifer Simpson from publishers Bloomsbury Professional, Minister for Justice and Equality, Frances Fitzgerald, TD, and Professor John Wylie
Winners of the Practical Law Book of the Year were Arthur Cox’s employment law team for their book Employment Law Yearbook 2013. Included in the picture are DSBA President Aaron McKenna, Paul English from Peter Fitzpatrick & Company cost accountants (sponsors), contributors from the Arthur Cox employment law team including Seamus Given and Minister for Justice and Equality, Frances Fitzgerald, TD
Winners of the Outstanding Contribution to Legal Scholarship Award were David Barniville, Jim O’Callaghan and Blathna Ruane, co-editors of Law and Government - a tribute to Rory Brady. Pictured (left to right) were: Jim O’Callaghan, David Barniville, Siobhan Brady, Minister for Justice and Equality, Frances Fitzgerald, TD, Conor McGuill (Law Society Skillsnet - sponsors), Blathna Ruane and Aaron McKenna, President of the DSBA the Parchment 19
The Companies Act 2014 - what you need to know The Companies Act 2014 (“the Act”) was commenced with effect from June 1st 2015. The Act has been a long time coming. Simon O’Neill sets out what directors and secretaries of companies need to understand in preparation for the transitional period of 18 months
he Act provides for the consolidation of existing company law and re-organisation of the law relating to companies.
Types of Company
The Act designates seven types of company: 1. A limited company or “LTD” – the new form of private company limited by shares with unlimited capacity. 2. A designated activity company or “DAC” – a company with restricted objects, most comparable to the existing private limited company by shares. 3. An unlimited company or “ULC”. 4. A public unlimited company with share capital or “PUC”. 5. A public unlimited company not having a share capital or “PULC”. 6. A company limited by guarantee not having a share capital or a “CLG”. 7. A public limited company or “PLC” as we know them. Incorporation of specific investment companies is still provided for under the Irish Collective Asset Management Vehicles Bill 2014 or “ICAV”.
1. What if we do nothing? • Existing private companies limited by shares will become an LTD with the prescribed constitution under the Act unless the company ‘opts out’ to become a Designated Activity Company (DAC) during the 18-month transition period. • During the 18-month transition period the law relating to DACs will apply to existing private companies limited by shares. 2. Re-registration options? • During the transition period, a company may convert to an LTD by passing a special resolution, adopting new model constitution under the Act and filing a form N1 in the Companies Registration Office. Thereafter a new Certificate of Incorporation shall be issued by the
Registrar of Companies. • During the transition period, a company may convert to a DAC within 15 months of the commencement of the Act by passing an ordinary resolution (or on the requisition of 25% of the members requiring reregistration as a DAC). The company will be required to file a resolution, new form memorandum and Articles of Association, form N2 with the Companies Registration Office and to change its name to include the suffix ‘DAC’ or ‘Designated Activity Company’ in its name. • If a company wants to avail of the benefits of the LTD status before the 18-month transition period, it must undertake the express re-registration process prescribed under the Act by special resolution. • Re-registration during the transition period can be undertaken subject to nominal fees payable to the CRO. In preparation for the transition period and reregistration phase, companies should consider the default constitution provided under the Act to ascertain if it is fit for purpose for their business and seek advice regarding relevant opt-out options available.
1. AGMs • An LTD company may adopt written procedures rather than hold a physical AGM subject to certain conditions under the Act. • DACs, PLCs, CLGs and ULCs may dispense with the requirement to hold an AGM only where they are single member companies. 2. Directors • The Act sets out a codification of directors’ fiduciary duties and although not an exhaustive list of a directors’ fiduciary duties, the Act provides a reference point for directors and imposes an objective standard standard of skill and diligence on them in respect of their conduct.
20 the Parchment
Summer 2015 dsba.ie Simon O’Neill is a member of the DSBA Business and Commercial Law committee and practises with the McKeever Rowan Commercial Team
• The disclosure of interests regime relating to interest in shares and share options has been eased and any de minimus interest in shares (or share options) which amounts to less than 1% of the issued share capital is no longer required to be disclosed. • In the case of most of the company types, directors are entitled to vote upon contracts or matters in which they have an interest, provided they disclose their interest and a register of such disclosures is maintained in which disclosures are entered in the register within three days. • The doctrine of ultra vires as it applies to a company is revoked. Acts which would fall outside the objects of a company shall not prejudice third parties or be invalidated. • A default power to borrow and grant security is prescribed in the Act for all companies. • Directors of large companies must establish an audit committee. • At least one director must be resident in the EEA or a €25,000 bond obtained. • The limit of 25 directorships for any one director is retained. • The Act imposes and codifies fiduciary duties of directors. Breach of such duties may give rise to personal liability but any act in breach of a director’s fiduciary duties will not be voided by reason of the breach. • Registers of directors/secretaries and copies of directors’ service contracts and disclosures by directors must be maintained by the company. • Four categories of offences are prescribed under the Act with penalties ranging upwards from a class A fine (i.e. up to €5,000 per the Fines Act 2010). 3. Directors’ compliance statements • The concept of directors’ compliance statements has been re-introduced albeit in a more practical manner (previously contained in the Companies (Auditing and Accounting) Act 2003). Although not as onerous as the
requirement previously contained in the Companies (Auditing and Accounting) Act 2003 which was never commenced, directors’ compliance statements apply to directors of PLCs and large limited companies and require a compliance statement confirming the company’s compliance with “relevant obligations” (meaning obligations in relation to category 1 and category 2 offences under the Companies Act 2014 and tax legislation). • Directors must prepare a compliance policy, confirm compliance in the directors’ report and have appropriate procedures in place for securing compliance with the company’s relevant obligations. • The compliance statements requirement applies to every PLC and to LTDs, DACs, and CLGs where their balance sheet total exceeds €12.5m and turnover for the year exceeds €25m. • ULCs are exempted from the requirement to prepare compliance statements. 4. Summary approval process • The concept of a Summary Approval Process is provided for in respect of certain ‘restricted activities’ which a company might undertake. • This process seeks to bring certain restricted activities within the scope of the directors/company where previously approval or application to the High Court might have been required. • The summary approval process may be used in relation to the following activities: (i) The provision of financial assistance (previously commonly known as Section 60). (ii) Reductions of share capital. (iii) Mergers. (iv) Determination of certain profits as profits available for distribution. (v) Approval of loans to directors. (vi) Variation of share capital in re-organisations. (vii) The commencement of members’ voluntary liquidations.
In preparation for the transition period and re-registration phase, companies should consider the default constitution provided under the Act to ascertain if it is fit for purpose for their business and seek advice regarding relevant optout options available
the Parchment 21
• To avail of the summary approval procedure, two directors or a majority of the directors (if more than two) must make a declaration which is provided to members for approval of the ‘restricted activity’. The members must authorise the restricted activity by passing a special resolution approved by 75% of the members. • The declaration must be filed in the Companies Registration Office within 21 days of the restricted activity being undertaken. The special resolution authorising the restricted activity must be filed within 15 days of the passing of the resolution. • The Act alters the requirements for auditor’s reports such that an auditor is now required only to confirm the directors’ declaration is not “unreasonable” rather than confirm in its reasonable opinion under the old regime. 5. Company charges/security • The Act introduces a two-phase process for registration of charges created by a company. It will now be possible for a creditor to file preliminary notification of intention to create a charge up to 21 days before creation of the charge. Provided particulars of any such charge (C1) are filed during this 21-day period (in the usual manner), the creditors’ priority shall be backdated to the date of receipt by the CRO of the preliminary filing. • The requirement for the making of a statutory declaration by directors on the satisfaction of a charge is replaced with a ‘statement of satisfaction’. However, where a person making the statement is found to not have made this statement ‘honestly believing it to be true’ a court may impose personal liability on any such director for all the debts of the company. 6. Liquidators/receivers • A declaration of solvency must be delivered to the Companies Registration Office within 14 days of winding up otherwise the MVL should be invalid. • Liquidators must be qualified, subject to members of certain prescribed bodies being recognised. • In a creditors’ voluntary liquidation, a company must advertise resolution for a creditors’ liquidation in Iris Oifigiuil within 14 days of passing the resolution. • The Act lists the powers vested in a receiver, which may be added to in the charge or debenture document.
Meetings Members meetings • An LTD subject to unanimous written resolution from the members may dispense of the holding of an AGM. • Other company types may dispense with the holding of an AGM if they are single member companies. • AGMs and EGMs do not require to be held in the State. • The Act provides as a default position, rights for members to convene an EGM unless otherwise excluded in the constitution of the company (subject to members representing 50% or more of the share capital of the company). • Default notice periods apply under the Act unless otherwise varied in the constitution of the company as follows: • 21 days for AGMs and EGMs to pass a special resolution. • 7 days notice for ordinary EGMs. • The short notice provisions remain subject to member and auditor consent however.
• The default quorum provision is two members and applies under the Act unless varied by the constitution of the company. • The written resolution procedure remains along with the introduction of the concept of majority written resolutions which may be utilised by LTDs and DACs for ordinary resolutions which are signed by more than 50% of the members. Such written resolutions become effective seven days after the resolution has been passed unless all members consent to the waiver of this deferred period. • CLGs, ULCs and PLCs may not use the majority written resolution procedure. Directors’ meetings • The Act prescribes default provisions for the conduct and calling of meetings; the default quorum for a meeting of directors is two except for an LTD which may have one director, in which case the quorum shall be one. • A director may vote on a matter in which he is interested, subject to disclosure. • The model constitution permits the holding of meetings by telephone as an updating measure. • Provision is made in certain circumstances for a written resolution in place of a directors’ meeting. • The law relating to directors’ meetings is that as applies for an LTD, save where the Act specifically provides otherwise in the case of other company types.
Company Types 1. The ‘LTD’ • Unless companies expressly migrate to other company types, a private company limited by shares shall automatically become an LTD upon expiry of the 18-month transition period. • A single document constitution is prescribed under the Act and shall take the form of the existing memorandum and articles of association of the company. • An LTD may have between one and 149 members. • An LTD may have one single director or multiple directors but must have a separate individual secretary. • Members of an LTD may adopt majority written resolutions for ordinary and special resolutions. • An LTD is not permitted an objects clause and shall have unqualified legal capacity. The effect of which is that the concept of ultra vires is no longer applicable, once an activity is authorised by the directors by resolution. • Under the LTD structure, a company can opt to list persons with the Companies Registration Office who have unqualified authority to bind the company in addition to the board of directors. • There is no exemption from the use of ‘LTD’ or ‘limited’ in the company name. • An LTD company can avail of an audit exemption subject to thresholds. • An LTD is subject to the requirement for compliance statements where the relevant thresholds are exceeded. • The 10% limit on the number of redeemable shares is removed for an LTD.
22 the Parchment
Summer 2015 dsba.ie
• An LTD may avail of the summary approval process under the Act in respect of restricted activities. • An LTD cannot list securities or debt on a stock exchange or be a bank or insurance company. • AGMs and EGMs may be held in or outside of the State. • Table A is abolished and companies require to consider whether they wish to disapply any of the default provisions prescribed under the Act. • Parts 1 to 14 of the Act relate to LTDs exclusively. • An LTD may dispense with the requirement for holding an AGM subject to compliance with conditions. 2. The DAC • A DAC is the most similar to the existing type of company limited by shares. • The name of a DAC must end with ‘DAC’ or ‘designated activity company’. • Positive action is required by a company to ‘opt out’ and re-register as a DAC which becomes the new form of private limited company by shares. • A DAC retains the memorandum and articles of association and the Act prescribes the form of M&A which shall apply unless varied or excluded. • A DAC must have a minimum of two directors who must be over 18 years old and may not hold more than 25 directorships. • A DAC may have between one and 149 members. • A DAC may dispense with the holding of an AGM if it has one single member. • A DAC may take two forms: (i) a DAC limited by shares; or (ii) a DAC limited by guarantee. • A DAC must carry on activities in the State and its objects clause shall not limit the validity of the Companies Acts. • A DAC director may vote upon contracts or activities in respect of which it is interested, unless the constitution expressly prohibits such voting and subject to disclosure of interests. • A DAC may pass unanimous and majority members’ resolutions without holding meetings subject to conditions. • A DAC may avail of the audit exemption subject to conditions. • A DAC is subject to the compliance statement requirements. • In a DAC the members’ liability is limited to the amount unpaid on their shares. • Banks and insurance companies cannot seek LTD status and are required to convert to a DAC or other relevant company form. A DAC may list debt securities on a stock exchange. • Existing companies limited by guarantee will continue as DACs limited by guarantee upon commencement of the legislation. 3. The ‘CLG’ • Existing companies limited by guarantee with share capital will become DACs limited by guarantee. • Existing companies limited by guarantee with no share capital shall automatically become CLGs upon commencement of the legislation. • A CLG must change its name 18 months post commencement of the legislation to include the suffix ‘CLG’ or ‘company limited by guarantee’. • A CLG can claim an audit exemption if no member
A declaration of solvency must be delivered to the Companies Registration Office within 14 days of winding up, otherwise the MVL should be invalid objects to such an exemption. • A CLG may have one or more members. No maximum limit applies. • A CLG shall have a single constitution document comprising memorandum and articles of association and objects clause, the effect of which is that the concept of ultra vires shall not apply to a CLG and its activities shall not be limited by its constitution or objects, once duly authorised by the directors. • A CLG must have a minimum of two directors who must retire by rotation. • A CLG may dispense with the requirement for holding an AGM if it is a single-member CLG. • Part 18 of the Act relates to CLGs specifically, but CLGs shall otherwise be governed by the law relating to LTDs. • Directors’ remuneration must be determined by its members in general meeting. • Unless otherwise permitted, a director of a CLG may not vote on any matter in which they have an interest. • A CLG cannot use the majority members’ written resolution procedure. 4. The ‘ULC’ There are three types of ULC: (i) a private unlimited company (ii) a public unlimited with share capital (iii) a public unlimited without share capital • A ULC may be a single member company and where it is a single member company, it may dispense with holding an AGM subject to conditions. • There is no longer a restriction on an unlimited company reverting to limited status where it has previously converted from limited status. • The name of a ULC must include the words ‘unlimited company’ or ULC at the end. • The constitution of a ULC takes the form of a memorandum and articles of association in the prescribed form under the Act. Existing forms of memorandum and articles may continue to the extent they comply with the Act. • A ULC will have capacity to undertake anything contained in the objects in its memorandum. However, acts outside its objects will not be invalidated simply because they are outside the scope of the objects contained in the memorandum. • Acts outside of a ULC’s objects may be subsequently ratified by special resolution. • Only private unlimited companies can avail of an audit exemption subject to the conditions laid down. • Subject to certain conditions a private unlimited company may claim an exemption from filing accounts. • The ULC is not subject to the compliance statement or directors’ compliance statement requirements. P the Parchment 23
DSBA ANNUAL CONFERENCE BERLIN
17-20TH SEPTEMBER 2015
DSBA DPS.indd 2
3 3 Nights Superior Room at the 5* Ritz Carlton Hotel 3 Gala Dinner at the Reichstag-home to the German Parliament 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
DSBA DPS.indd 3
Revenue Insight The Revenue Commissioners have released the 2014 annual report. Finola O’Hanlon and Brian Broderick look at some interesting details on Revenue activities and outlook in 2014
Stamp Duty In 2014 the number of stamp duty returns filed was up by 25% on the previous year, reflecting the fact that the property market and economy were beginning to recover in 2014. The number of stamp duty audits were down on the previous year but the yield increased by just under 20%, so the Revenue recovered more money with fewer audits, which is the primary aim of the Revenue’s risk identification system. Revenue uses the REAP (Risk Evaluation Analysis and Profiling) system to identify potential tax defaulters. Information is fed in from more than 50 separate data sources, ranging from the letting details held by the Private Residential Tenancies Board to interest payments from banks over a certain threshold. The data is crosschecked against tax returns made, and a risk ranking is attached to each taxpayer. The higher the risk ranking is, the more likely the taxpayer is to be selected for audit. Data from stamp duty returns for properties and commercial leases are forwarded by Revenue to the Property Registration Authority, to form part of the published property registers.
CAT & LPT The 2014 tax receipts from Capital Acquisitions Tax (CAT) were similar to receipts in the boom year of 2007, largely as result of an increase in CAT rates (from 20% to 33%) and a dramatic reduction in the tax-free thresholds available during the period. For example, the group (a) threshold in 2007 was €496,824 and it has now been reduced to €225,000.
The drop in tax-free thresholds from the heights of 2009 (when a child could take €542,544 free of tax) and the current level of €225,000 (a reduction of circa 58%) largely mirrors the fall in property prices. The CSO reports a fall of 57% in Dublin residential property prices between 2007 and 2012. There has been some recovery in the value of property in most of Ireland and the latest CSO report dealing with house prices in March 2015 indicated that Dublin residential property prices overall are back to a level which is just 38.7% lower than the peak in 2007. The Minister for Finance indicated recently that he will be keeping tax thresholds and other aspects of CAT under review. This has been taken to mean that he is considering some movement in CAT rates and/or thresholds, or the cut-off point for prior benefits, in the context of the next Budget which is due in October 2015. If asset values rise in the current year, the 2015 CAT receipts should be higher than last year. However, the annual report made it clear that CAT is one of the less lucrative taxes, accounting for a very small portion of overall tax receipts. Net CAT receipts of €356m was collected in 2014, but this was less than 1% of Revenue’s net receipts for the year. Nearly €137m more tax was collected from LPT than CAT. Revenue reported that they collected €493m in Local Property Tax (LPT) in 2014 (1.19% of net receipts for the year) and received advance payments of €39m for 2015 LPT. While LPT was not well received politically, it has been very successfully implemented by Revenue in a relatively
26 the Parchment
Summer 2015 dsba.ie Brian Broderick and Finola O’Hanlon are tax practitioners at O’Hanlon Tax Ltd
short period of time, and the recovery rate for LPT is very high. There was a 95% compliance rate for LPT in 2014, presumably due in part to the fact that LPT is a charge on the relevant property and dealt with in the course of conveyancing. This is coupled with a Revenue policy of making LPT easy to pay and hard to avoid. The payment can be deducted at source from salaries and social welfare payments, as an alternative to payments being made by a taxpayer directly, and income tax surcharges arise where LPT is not paid by self-assessed taxpayers, all measures that encourage compliance. Revenue noted that this was the second year in a row that LPT compliance was at 95%, and this was described as “a strong vindication of our focus on excellent service backed up by decisive interventions when necessary.”
Revenue Interventions Revenue have remained focused on the effectiveness of their interventions. The Revenue computer systems have been extended and improved in recent times and the movement towards e-filing returns has freed up Revenue personnel to carry out audits, verification checks and other interventions. The area of audit is a growth sector for Revenue and the focus has been on targeting the risky cases. Between 2014 and 2015, Revenue reduced the overall number of audit interventions by circa 30% but increased the yield from audit activity by circa 11% as the 7,636 audit interventions carried out by Revenue in 2014 yielded €338.8m in tax. Only 270 of the interventions were random audits, and the balance were selected based on risk factors identified
by Revenue. Most random audits provided a low yield and the majority (64%) resulted in no additional tax being paid.
Audit Targets Revenue’s audit analysis gives some insight into areas and the type of taxpayers they are currently targeting as high risk. The following professions and activities were listed as some of the key targets in 2014: • Legal Activities - There were 723 audits and interventions relating to legal activities in 2014 resulting in a yield of €6.1m. • Medical Practices - There were 569 audits and interventions in the area of medicine and Revenue yielded circa €11.6m from doctors and medical companies controlled by doctors. Not surprisingly, Revenue have indicated that they will continue to focus on this area. • Rental Activities and Landlords - There were 5,534 audits and other compliance interventions in relation to rental properties in 2014, resulting in a yield of €44.1m. The high level of activity in relation to rental properties may come from the fact that in 2013 a property database was compiled for LPT, giving Revenue a much clearer picture of the number of houses and other dwellings in Ireland, and information in relation to which properties are occupied by owners and which are available to rent. In addition, the linking of the LPT data with PPS numbers for the owners, and those in receipt of rent, means that Revenue can identify and track the taxpayers who are
Between 2014 and 2015 Revenue reduced the overall number of audit interventions by circa 30% but increased the yield from audit activity by circa 11% as the 7,636 audit interventions carried out by Revenue in 2014 yielded €338.8m in tax the Parchment 27
active as landlords. The yield from unpaid tax on rent rose from €36.7m in 2013 to €44.1m in 2014 (an increase of just under 20%). With this level of recovery this is likely to remain a key area for Revenue in 2015.
2014 Revenue annual report – Tax Statistics and Pie Charts
Net Revenue receipts for 2014 were €41.4 billion which was up €3.5billion (a 9.3% increase) on 2013 receipts. Tax collection was 3.05% ahead of target for the year. Net receipts are not yet at pre-recession levels (€47.5 billion in 2007) but are significantly higher than the 2010 low of €31.9 billion. Stamp duty receipts also remain significantly lower than 2007 levels but this is due in part to a reduction in stamp duty rates as well as 2014 transaction levels not having recovered to 2007 levels. In 2014 CGT receipts (€539m) are dramatically lower than 2007 receipts (€3bn) and this is likely due to a combination of CGT losses sheltering CGT gains and a lack of capital gains arising where asset values have not recovered to 2007 values. One area where CGT has become relevant again is in probate cases, where asset values rebase on death and
The fact that more tax was collected out of fewer audits and interventions indicates that Revenue are succeeding in their aim of identifying and targeting riskier taxpayers
gains often arise during the course of administration of an estate. Losses which may have arose to a deceased individual are not available to the estate and care needs to be taken when valuing property for probate purposes as this sets the base cost for any future disposal by an estate (or beneficiaries). If a sale of property is likely to occur quite quickly following a death then the executors could consider delaying the filing of the Form CA24 until a sale price has been agreed so that an accurate valuation of the property at the date of death can be ascertained.
Comparisons with 2007 Pre-Recession Receipts Income tax and VAT have traditionally been the two biggest income sources for Revenue and 2014 saw the first major increase in VAT receipts since the recession with a year on year rise of 8% bringing VAT receipts to €11.2 billion but the number of transactions are still down on 2007 levels.
Conclusion Revenue’s 2014 annual report highlights the shift in focus to taxes on income and the ongoing mission to improve Revenues systems to capture information and use it to identify and target the riskier tax cases. In 2013, a total of 626,561 audit and compliance interventions were completed resulting in a yield of €548m. In 2014, the number of interventions reduced significantly (437,181) but the yield increased to €610m. The fact that more tax was collected out of fewer audits and interventions indicates that Revenue are succeeding in their aim of identifying and targeting riskier taxpayers. P
28 the Parchment
As Seen On IFTA Nominated RTE Series, ‘Dead Money’
Canberra Christchurch Rome Prague
Massey & King is the only incorporated firm of specialist Genealogists & Probate Researchers in Ireland.
www.masseyandking.com tel: (01) 492 8644 email: email@example.com
32698-Massey & king.indd 1
LAND REGISTRY MAPPING & BER CERTIFICATION SPECIALISTS l l l l l l
Land Registry Compliant Maps from €200+VAT 650 Land Registration Maps produced last year 2,000 Commercial & Residential BER Certs issued last year Qualified team of Architects & Engineers registered with SEAI & Engineers Ireland Prompt Efficient Service Full PI Insurance
COMMERCIAL ENERGY RATINGS LTD
Unit 3, Churchtown Business Park, Churchtown, Dublin 14. t: 01-2983000 e: firstname.lastname@example.org www.cerl.ie
Commercial Energy Saving - 1-2 page.indd 1
Periodic Payments Orders â&#x20AC;&#x201C; an end to uncertainty?
Mary Hough sees an end in sight for the families of those who have been catastrophically injured following the publication of long-awaited draft legislation
he Government has now published the long awaited draft legislation intended to empower the courts to award Periodic Payments Orders (PPOs) instead of lump sums in catastrophic injury claims. The draft legislation, in the form of an amendment to the Civil Liability Act 1961, largely reflects the recommendations made by the working group on medical negligence and periodic payments in a report published in 2010. This is a welcome development for the families of the catastrophically injured, particularly those whose claims for compensation have been adjourned to await the enactment of PPO legislation. Although at present the courts have no power to order PPOs, the concept of PPOs has been introduced in more than 20 catastrophic injury claims which have come before the High Court in recent years, mostly those of children injured at birth. In these cases the parties, with the approval of the court, have agreed a lump sum (usually for general damages, loss of earnings and items of past special damages) and also a sum of money to cover several years of future care and medical treatment. The claim is then adjourned for several years with the intention that a final order may be made when the PPO legislation has been enacted. A sum is usually also agreed for aids and appliances and assistive technology
for the injured party, either as part of the payment until the adjourned date or as part of the agreed lump sum. Because the legislation has not been enacted as of yet, many of these cases have come before the High Court again, some on more than one occasion. In most of these cases the parties have agreed a further adjournment for several years to await the introduction of the legislation. In some cases, the parties, with the approval of the court, have agreed a further sum for the period of the adjournment on a similar basis to when the claim was first adjourned. In other cases the parties have agreed different terms for the further adjourned period. In some other cases the injured parties have exercised their entitlement to seek a lump sum. For the past number of years both plaintiffs and defendants in cases of catastrophic injury have been in a zone of uncertainty, between the PPOs which are not yet available to them and the much criticised traditional method of lump sum compensation payments. It has long been considered that the single lump sum award is inadequate and inappropriate in cases where an injured party has been catastrophically injured. It is almost impossible for a lump sum payment, however carefully calculated, to accurately compensate an injured party. In almost all cases the injured party will either be over compensated or under compensated.
30 the Parchment
Summer 2015 dsba.ie Mary Hough is a partner in the healthcare/litigation department at Hayes Solicitors
Civil Liability (Amendment) Bill 2015 Under the recently published, proposed legislation a PPO can only be made in cases where the injured party has been catastrophically injured which is defined by reference to the need for “life-long, permanent care and assistance”. The courts will have power to order a PPO where the parties consent. The courts may also order a PPO where the parties do not consent, but having heard their preference for the form of payment, the court determines that a PPO is in the best interests of the injured party.
What Heads of Claim can PPOs apply to? In the draft legislation the heads of claim for which PPOs may be ordered are as follows: (a) Future medical treatment (b) Future care (c) The provision for assistive technology or other aids and appliances associated with such care or treatment. A PPO may also include damages in respect of any future loss of earnings by the injured party but only where the parties consent to the inclusion of such damages.
How will PPOs work? The following is an example of how a PPO might work
in practise. In the case of a catastrophically injured minor aged ten years, instead of a single lump sum award of, for example, €7m, if such a case were the subject of a PPO, the award could look like this:
It has long been considered that the single lump sum award is inadequate and inappropriate in cases where an injured party has been catastrophically injured
A lump sum payment of €1,455,000 for the following: General damages Retrospective care costs Loss of earnings Special damages to date Accommodation Total
€450,000 €150,000 €375,000 €130,000 €350,000 €1,455,000
and also annual payments for future care, future medical treatment, assistive technology plus aids and appliances. • To age 18 • From age 18
€175,000 per annum (indexed) €190,000 per annum (indexed)
The above figures do not necessarily make up an award of €7m. Instead, what the PPO does is ensure that the injured party is accurately compensated for his needs as they arise during his lifetime. If the injured party survives beyond his expected life expectancy the Parchment 31
If the injured party survives beyond his expected life expectancy he will continue to be compensated throughout his lifetime he will continue to be compensated throughout his lifetime. In such circumstances the ultimate size of the award may be considerably in excess of €7m. On the other hand, if the injured party does not survive as long as expected, the compensation payments will end on his death.
Stepped Payments The proposed legislation allows for the court to make provision to increase or decrease the amount awarded by PPO on a specific date or dates consistent with expected changes in the injured party’s needs during his life. In the example above, the annual payment increases when the injured party attains his 18th birthday to coincide with his moving out of full-time education. There is no upper limit on the number of such stepped payments, but in making an order for a stepped payment the court must specify the reasons justifying the increase or decrease, as well as the date on which it is to take effect and the amount of the increase or decrease at current value.
Security of and Guarantees of Future Periodic Payments The court may not make a PPO unless it is satisfied that the continuity of payments under the order is reasonably secure. Although receiving payments on a regular basis reduces several risks for injured parties such as inflation risk, investment risk and longevity risk, there is an inherent risk for the injured party where the payments into the future are being made by an insurance company. That risk is that the insurer could become insolvent. Adequate guarantees are needed to protect the injured party’s Periodic Payments award. It is proposed to address this by removing the restrictions on the amount of payments from the Insurance Compensation Fund where an insurance company which is the subject of a PPO goes into liquidation.
Index One of the more vexed issues which the Government has had to consider in the context of the PPO legislation is the appropriate index to be applied to PPOs. The indexation rate chosen is the annual rate of the Irish Harmonised Index of Consumer Prices (HICP) as published by the Central Statistics Office. It is proposed that PPOs shall be subject to an annual revision to cater for changes in costs in accordance with the HICP. The Minister for Justice and Equality, with the agreement of the Minister for Finance, will have the power to make regulations to amend the indexation rate applicable following each review of the indexation rate. The first such review will be five years after the coming into operation of the act. This aims to
ensure that the indexation used adequately measures the changes in costs arising for injured parties having regard to the changes that have occurred in the index and in such costs over the five-year period. The index will be key to the success or failure of the PPO legislation. If the index is not acceptable to injured parties and to the courts, PPOs are unlikely to be made as the court will only order a PPO where it has determined it to be in the best interests of the injured party. The HICP does not measure increases in the cost of medical appliances or care workers’ earnings which will form the major components of most PPOs. This is unlike the ASHE 6115 index used in the UK which is an annual earnings survey applicable to care assistants and home carers. There is no such equivalent index in Ireland. However, ministerial review every five years introduces a means by which the index may be reviewed and adjusted appropriately to ensure that the index keeps pace with changes in costs arising for injured parties.
Absence of Variation Order Another significant difference between the proposed legislation and its UK equivalent (the Damages Act 1996, as amended) is the absence of any power for the Irish courts to make a variation order. In its report the working group recommended that provision be made for the variation of PPOs in certain limited circumstances. The working group recommended that variation should only be permitted where it has been determined that the injured party’s condition would seriously deteriorate or significantly improve, and where the future contingency has been factored into the original PPO. However, no provision for a variation order has been included in the draft legislation.
Injuries Board It is intended that the Personal Injuries Assessment Board (PIAB) Act 2003 will be amended to enable the Injuries Board to award damages in the form of Periodic Payments in respect of catastrophic injuries claims other than those arising from clinical negligence, subject to the provisions of the proposed legislation.
Conclusion When she published the bill last month Minister Fitzgerald said that she aims to have the legislation enacted before the end of this year. She said that the legislative proposals “aim to give much needed financial security to those who have been catastrophically injured and who require long-term care. They will benefit people injured through accidents or through medical negligence, many of them children. The person will have certainty that he or she will receive an index-linked annual payment to cover care and medical costs. This will remove the fear of running out of money, particularly if costs are higher than anticipated at the time of the award”. There is no doubt that the enactment of the legislation will bring greater certainty to those plaintiffs and defendants in cases of catastrophic injury who have been in a zone of uncertainty in recent years. It is hoped that the enactment of the legislation will bring about the greater certainty which the families of those who have been catastrophically injured have long awaited. P
32 the Parchment
Lady Solicitor’s Lunch Friday 9th October 2015 for Lady Solicitors in the Kildare & University Club at 1pm. Drinks Reception at 12.30pm. Tickets: €50 For bookings and more information please contact email@example.com or Tel: 01 670 6089.
1-2 ladies do lunch.indd 1
DUBLIN SOLICITORS BAR ASSOCIATION Dublin Solicitors Bar Association 1st Floor, 54 Dawson Street, Dublin 2. Phone:01 6706089 | FAX: 01 6706090 | DX: 212011 Suffolk Street.
www.dsba.ie DSBA - New Premises Filler 1/2.indd 1
2 halfs.indd 1
Former editor of the Parchment, Keith Walsh caught up with DSBA President Aaron McKenna to talk to him about law, life and running his busy legal practice whilst heading up the largest bar association in the country
efore meeting Aaron McKenna to conduct this cross examination, I asked a number of colleagues what was their view of our DSBA President and how they found him in practice. All of the responses were similar but the most common one was that while he appears low key there is a lot more to him than meets the eye. Indeed ‘meeting the eye’ was a feature of the other quote which recurred in the straw poll, particularly from female solicitors – “the best looking DSBA President since David Bergin”. High praise indeed, it is impossible to find anyone to say a bad word about him, and as this is the cross examination – we tried. He must be doing something right as since he set up in practice in 2008 in Dublin 2 and Ashbourne, County Meath, he has run two very busy offices with great success. He’s well known for his practice in commercial litigation in particular, and has made a name for himself and carved out a real niche as a
Another hallmark of Ciaran’s training was to always act with integrity and this meant always giving the client 100% of your time, energy and attention
solicitor who is willing to take on the larger banks on behalf of embattled borrowers. He is also enjoying a great year as President of the Dublin Solicitors’ Bar Association and was just about to host the DSBA dinner and Law Book Awards with the Minister for Justice & Equality when he spoke to the Parchment. Colleagues who know and have dealt with Aaron McKenna describe him as understated, someone who gets results, not a person to brag about his own achievements but someone who quietly goes about his business in a very effective manner. One senior counsel said: “I am always delighted to get a brief from Aaron because he always identifies clearly the legal point of greatest importance to his client, is clear what advice he is seeking, what the client is seeking and also gives his own view on the case which I always take into account. He is a pleasure to deal with and it is no surprise to me that he has established a formidable
34 the Parchment
Summer 2015 dsba.ie Keith Walsh is a former editor of the Parchment; a former president of the DSBA and principal of Keith Walsh Solicitors, Crumlin
the Parchment 35
Photography: Paul Sherwood
Aaron McKenna at a glance
NAME Aaron McKenna PARTNER Deirdre CHILDREN Ellie Rose (10), Daniel (8), and Jack (6) BIGGEST INFLUENCE ON YOUR LEGAL CAREER The colourful and experienced management at O’Mara Geraghty McCourt FAVOURITE MOVIE A Clockwork Orange FAVOURITE SINGER The Rolling Stones HOBBIES Golf, reading, cycling
It is unfortunately more common that the relationship has broken down to such an extent that it is beyond retrieval and then I would end up acting in litigation with the bank reputation as a commercial and civil [law] litigator, particularly on behalf of plaintiffs and particularly borrowers who issue against financial institutions, in many circumstances where they have treated the borrower poorly”. Aaron is a Louth man who apart from university and a brief stint in Germany has always lived in Louth or Meath and commutes to work in Dublin and Ashbourne. He pursued European studies and law at the University of Limerick. His chosen foreign language was German and he went on to work for Deutsche Bank in Frankfurt for eight months as part of his university placement. He enjoys German and after university worked for Pioneer Investments in Dublin dealing mainly with their Austrian and German clients, taking instructions and dealing with banking and investment matters. He then secured a job in the legal department of Scottish Provident dealing
with legal and technical issues and with drafting in particular, in relation to pension plans, trusts and matters arising from loans and in-house regulation. It was always his ambition to qualify as a solicitor and although he initially had no connections in the legal profession, he made it his business to secure some. One such connection he made was with the well known solicitor Jimmy McCourt, then an up and coming DSBA council member, which secured him an interview with his business partner Ciaran O’Mara of O’Mara Geraghty McCourt. The interview must have gone well as Ciaran went on to become Aaron’s master. Aaron recalls: “Ciaran told me very early on in my apprenticeship that a true lawyer loves the law and keeps up to date. Ciaran was a pure lawyer in the sense that he purely did employment law and did [and still does] it to an extremely high level. I was delighted to see that he got a great result in the RSA case
for his client last week. Ciaran was someone who obviously loved his job and enjoyed the detail as well as dealing with clients. He was an inspirational master and indeed it was an excellent traineeship as not alone did I deal with employment law with Ciaran, but I learnt from Jimmy and all the other partners at O’Mara Geraghty McCourt. It was a hugely busy practice with a good mix of clients and practice areas. Another hallmark of Ciaran’s training was to always act with integrity and this meant always giving the client 100% of your time, energy and attention. O’Mara Geraghty McCourt was also excellent at emphasising the importance of relationships with clients, following the clients’ instructions but also giving them the best advice. I would like to think that this is something that I have gone on to develop further in my own practice, and which in my view is the only way to operate a successful solicitor’s practice. I focus on the client and on the law.” “It was while at O’Mara Geraghty McCourt that I was introduced to the Dublin Solicitors’ Bar Association. Jimmy McCourt was very involved in both the Bar Association and the Law Society at the time. He brought me to a number of meetings and I soon began to volunteer and eventually was nominated to the council of the Bar Association. It has been a huge learning experience for me and was a great opportunity to contribute my own particular skills to the Bar Association. I have also been lucky enough to enjoy the privilege of the increased collegiality which engagement with your local Bar Association brings. The most important parts for me, of the Dublin Solicitors’ Bar Association, is its emphasis on collegiality and I have done my utmost this year to emphasise that collegiality, wherever possible.” Coming from a home in Louth where his dad, Emmett, was self-employed, it was always Aaron’s intention to set up in practice on his own account. Aaron explained that it was essential for him not alone to have a Dublin base in Dublin 2 but also to establish an office outside Dublin as he believed the two offices would compliment each other. He explains that while there are many challenges to running a business from two locations, one of the benefits is that clients can see you in either office. This has been a very busy year – both for Aaron, and for the DSBA as the bar association has recently moved offices from its longstanding location in Harcourt Street to a new office on Dawson Street. Aaron says that it was coincidental that his office in Ashbourne is now moving from an office park to a more central location in the middle of the town. Another great change to Aaron’s and his wife Deirdre’s household will be the addition of a new baby in August this
36 the Parchment
Legal Costs Accountants
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: firstname.lastname@example.org www.behans.ie 31948_Behan & Associates.indd 1
TITLE INSURANCE Looking for immediate solutions visit:
For an intelligent conversation, discuss your unique needs and challenges in Ireland with the Titlesolv Team. Commercial Judicial Review Renewable Energy
Distressed Assets Residential Development Telecommunications
For more information about Titlesolv or to gain access to our products contact: Carmel Nielsen T: +353 (1) 633 8872 M: +353 87 299 8088
Titlesolv is a trading name of London & European Title Insurance Services Limited (Registered in England & Wales company number 4459633 - VAT No. GB 709149918.) authorised and regulated by the Financial Conduct Authority and a member of the Hannover Re Group.
Please call 01 707 6036
Law_Society_Gazette_A6_Advert_approved 29_05_15.indd 1 advertise here filler_1-4.indd 1 page 37.indd 1
Titlesolv 1-4.indd 1 01/07/2015 15:12
29/06/2015 12:31 01/07/2015 17:34
year. Aaron and Deirdre already have three children, Ellie Rose who is ten, Daniel who is eight and Jack who is soon to be six. Both parents are delighted to have a new arrival due in August. Aaron has proved wrong the old adage that you should never be an advocate in your own cause as both he, in his typically understated way, and his equally determined wife Deirdre have done great work on behalf of their daughter Ellie Rose, who has Down Syndrome, and encouraged other parents in similar situations, by advocating for increased services and support for Ellie Rose so that she could successfully attend her local mainstream primary school. It is not easy to take on the might of the educational establishment but he has done so successfully with the help of Deirdre. The McKenna children all attend their local school which is five minutes from his house in County Meath. He then either turns the car towards Meath or Dublin depending on the day ahead. This year has seen a lot of travel both for himself and Deirdre as they represented the DSBA at the Liverpool Law Society, at meetings in Belfast, in Mayo before Christmas and on his own in Cork for the Southern Law Association annual dinner. His most recent engagement was to host the Law Awards and DSBA dinner with the Minister for Justice, Francis Fitzgerald, TD, on Friday June 26th. Aaron has enjoyed an excellent relationship with the minister and has been very active in advocating on behalf of DSBA members in relation to changes to the Legal Services Regulation Bill and other legislative matters of interest to the profession. He views a good relationship with the Minister for Justice and Equality as ‘essential to advance the profession’s interests, but also in the best interests both of the Department of Justice and of Dublin solicitors’. Aaron’s German connection has come to the fore in his choice of venue for this year’s annual conference – Berlin. Having spoken the language fluently and engaged with German lawyers in Berlin, he is looking forward to having a very successful conference. He comments: “I was delighted by the huge response the DSBA got to this year’s conference in Berlin. We have made some great contacts with German law firms and the importance of Berlin in the EU and generally at the moment, cannot be overstated. Berlin is a fantastic venue for our conference and I have shortened it this year to three nights to make it more concise and affordable and to make it a better experience.” And how does he find being president of the DSBA? “Both daunting and exhilarating, and it is a lot to do with time management and planning (and keeping to) your schedule. As I have always found, involvement with the DSBA is great, it is really all about collegiality and it has been very worthwhile and I have really enjoyed it”.
There has been a huge improvement in the relationship between the DSBA and the Minister for Justice and Equality and it is essential that we continue to work at this relationship One of the practice issues on which Aaron feels very passionate is the way that the banks have treated their borrowers, or anybody in “default” of what the banks believe is their loan agreement. In the last seven years he has carved out a niche for himself as someone who acts for borrowers who have difficulties with the banks. He says “clients who suffer a default in their commercial mortgage” often come to me and I will either negotiate directly with the bank or assist them in a form of mediation with the bank. It is unfortunately more common that the relationship has broken down to such an extent that it is beyond retrieval and then I would end up acting in litigation with the bank. I initially advised one client in relation to this and then thankfully the case went well so that I was referred more clients and it grew from there. I try to conduct business on the basis of delivering for clients. “Arising from these early cases, and the building up of clients since then, I have been on the other side of almost every single financial institution, a lot of my time would be taken up with this side of the practice. However, I also deal with some employment law and personal injury cases. Alisha Mulvanny, recently appointed solicitor to the practice would assist with the more general litigation work and I am lucky to have my
brother David as a legal executive, although I will be losing him in September to Blackhall Place where he starts his PPC1. David originally trained as an engineer but I am delighted that he has joined me in the firm. Our part-time bookkeeper Jim Quinn is also of great help as is our other legal executive, Lisa Marie Cauchi”. Aaron’s highlights of the year are “meeting the big and small firms and colleagues from all over the membership. It is clear that the DSBA still has a great relevance to them and that you cannot beat face-to-face collegiality”. “Another highlight has been representing solicitors’ views to the Minister for Justice and Equality and communicating with the department. There has been a huge improvement in the relationship between the DSBA and the Minister for Justice and Equality and it is essential that we continue to work at this relationship”. As the interview finishes and we go our separate ways I realise the DSBA is lucky to have Aaron McKenna as its leader and wish him and Deirdre well with their most important business, which is non DSBA related, in August. I also forgot to tell him about the best looking president comment, which would have given him and Deirdre (and David Bergin) a great laugh. P
38 the Parchment
Paperwork Made Easy Snap Jervis offers a wide range of professional printing and copying services for the law profession including: Bulk Copying Full Confidentiality Agreement Available Binding Printed Tabs Ring Binders Secure Collection & Delivery Service Available
PLC ENGINEERING SERVICES LTD.
Consulting Forensic Engineers & Scientists
Contact Us To Find Out More
Merchants House, 27-30 Merchants Quay, Dublin 8 Tel: 01 679 7488 Fax: 01 679 8308 Email: email@example.com DX: 1 076 Four Courts
Snap Jervis Unit 6, Jervis Street, Dublin 1. T: (01) 872 5077 | E: firstname.lastname@example.org
Pat Culleton, CEng CPhys CSci MIEI MInstP
MMCA michael mccabe & associates
Snap Printing 1-4.indd 1
24/06/2015 14:30 ARCHITECTURE • PLANNING 32589_PLC ENGINEERING SERVICES.indd 1
ADD THOUSANDS TO THE VALUE OF YOUR PROPERTY ● A one-stop ● Specialists
solution for all your property needs. in renovating property for market. 1
One estimate. One great price. One point of contact. One professional service. email@example.com Office: 01 2548070
www.placelift.ie Mobile: 086 8159431
Placelift Ltd, Kilcroney Lane, Bray, Co. Wicklow
32700_Placelift.indd 1 4 quarters.indd 1
• DEVELOPMENT • CONSULTANTS 29/06/2015 12:21
PRA Approved Mapping (First Registration)
Pre-Purchase Building Surveys
Pyrite Survey & Testing (I.S. 398 Part 1 Reactive Pyrite)
Building Energy Rating Certificates. (Commercial & Domestic)
MMCA michael mccabe & associates
ARCHITECTURE • PLANNING • DEVELOPMENT • CONSULTANTS
email: firstname.lastname@example.org Tel: (087) 2452637 32162_Michael McCabe.indd 1 24/06/2015 11:01
Double Relief or Double Jeopardy? Choosing the venue for one’s disputes is a bit like choosing a wedding venue – it’s going to be costly, there is no winner or loser; you should really only do it once and you must try and get it right the first time. Ben Mannering reports on a recent High Court case that has put a stop to dual litigation
recent judgement by the president of the High Court in Ciaran Culkin v Sligo County Council  IEHC 46 deals with the issue of alleged bullying and harassment and the multi-faceted litigation which these cases bring. The plaintiff, quite similar to the previously reported case of Cunningham v Intel  IEHC 207, not only brought a complaint to the Equality Tribunal, pursuant to the provisions of the Equality Acts 1998, but, in addition to this, issued a personal injuries summons, seeking compensation for personal injuries allegedly arising out of the same bullying and harassment. This tactic is commonly used in such disputes, with no “first dance” to bring the parties together!
Eat The plaintiff ’s complaint to the Employment Appeals Tribunal was submitted on or around September10th 2009. The plaintiff ’s position was that the respondent failed to deal appropriately with systematic bullying and exclusion until he was ultimately constructively dismissed in May 2009. The EAT case was heard on July 25th 2012, post-Injuries Board authorisation which issued on November 19th 2010 and post the date of the issued personal injuries summons, which
was on February 2nd 2011. The EAT case ran for four days eventually concluding on June 26th 2013. A preliminary submission was made on behalf of the defendant stating that the matters before the tribunal were the same as those being pursued in the High Court and the plaintiff was precluded from pursuing both claims. The plaintiff in any event requested the equality officer to continue to hear the case, notwithstanding the defendant’s objections.
Statutory Provisions The procedure for making a complaint to the Equality Tribunal is governed by the Equality Act 1998, as amended. (‘the Act’). Section 77 (1) of the Act states: “77.—(1) A person who claims— (a) to have been discriminated against or subjected to victimisation, (b) to have been dismissed in circumstances amounting to discrimination or victimisation, (c) not to be receiving remuneration in accordance with an equal remuneration term, or (d) not to be receiving a benefit under an equality clause, in contravention of this Act may, subject to
40 the Parchment
Summer 2015 dsba.ie Ben Mannering is a solicitor/claims manager with the State Claims Agency which manages bullying and harassment personal injury claims against the State
subsections (3) to (9), seek redress by referring the case to the director.” Section 101 of the Act relates to ‘alternative avenues of redress and provides as follows: “101.—(1) If an individual has instituted proceedings for damages at common law in respect of a failure, by an employer or any other person, to comply with an equal remuneration term or an equality clause, then, if the hearing of the case has begun, the individual may not seek redress (or exercise any other power) under this part in respect of the failure to comply with the equal remuneration term or the equality clause, as the case may be. (2) Where an individual has referred a case to the director under section 77(1) and either a settlement has been reached by mediation or the director has begun an investigation under section 79, the individual— (a) shall not be entitled to recover damages at common law in respect of the case, and (b) where he or she was dismissed before so referring the case, shall not be entitled to seek redress (or to exercise, or continue to exercise, any other power) under the Unfair Dismissals Acts 1977 to 1993 in respect of the dismissal, unless the director, having completed the investigation and in an appropriate case, directs otherwise and so notifies the complainant and the respondent.”
Defendant’s Submissions The defendant’s counsel submitted that the plaintiff ’s claim to the Equality Tribunal was identical to the complaints raised in the plaintiff ’s personal injuries proceedings. It was submitted that once an investigation was commenced in relation to the complaint of the Equality Tribunal, Section 101 of the Act became operative and the plaintiff was consequently precluded from pursuing a simultaneous claim in the High Court. The defendants relied on Cunningham v Intel case above. The plaintiff therein, a lay litigant, had her proceedings for personal injury struck out by Hedigan J, whilst an appeal to the Labour Court was pending, on the basis that the defendant
objected to having to defend the same claim in two sets of proceedings. The defendants also relied on the well-established rule in Henderson v Henderson (1843) 3 Hare 100, which sets out the court policy to avoid double litigation of the same issues.
Plaintiff’s Submissions The plaintiff ’s contention was that the rule in Henderson did not apply and the matter is solely one of statutory interpretation, in particular the correct interpretation of Section 101(2)(a), and that rather than precluding a common law case based on broad unreliant facts of the section, this precludes cases which are already covered and have been pursued, pursuant to Section 77(1). The plaintiff ’s further sought to distinguish Cunningham on the basis that the plaintiff therein was a lay litigant and Cunningham did not deal with the statutory interpretation issue above.
Judgement Kearns J was satisfied that in accordance with Henderson v Henderson, the public policy of avoiding double litigation must be upheld. The plaintiff was informed at the Equality Tribunal hearing of the defendant’s objection but pursued the tribunal remedy regardless. The plaintiff is now estopped from resiling from this position having had his claim rejected by the tribunal. He still has a right to appeal to the Labour Court.
Much like a wedding, the venue may not suit everyone but once the couple (plaintiff and defendant) are happy with their choice, perhaps one should just stick with one venue and enjoy the big day!
The Last Dance This decision, preceded by Cunningham, is a positive decision for defendants who are frequently the subject of numerous jurisdictional cases and should be considered when confronted with such cross venue litigation. Again much like a wedding, the venue may not suit everyone but once the couple (plaintiff and defendant) are happy with their choice, perhaps one should just stick with one venue and enjoy the big day! P The views in this article are personal and do not reflect the views of the National Treasury Management Agency the Parchment 41
Richard Grogan is principal of Richard Grogan & Associates Solicitors
Holiday Pay and Overtime The Labour Court has consistently held that overtime is not to be taken into account in calculating holiday pay. Richard Grogan examines whether this is consistent with the EU directive
If the claims do start to run against the State, nobody will be able to say that we did not alert the State to the problem
he directive in Ireland was implemented by the Organisation of Working Time Act. There is ongoing conflict as to how holiday pay should be calculated. The directive states that workers have a right to at least four weeks paid annual leave but does not state how holiday pay should be assessed. However, the ECJ has ruled that the directive requires holiday pay to be based on “normal remuneration”. This includes payments linked intrinsically to the performance of the workers’ tasks. This was held in the case of Williams v British Airways  IRLR948.
UK Perspective In the UK, the EAT has decided that non-guaranteed overtime payments were intrinsically linked to the performance of the tasks required under the workers’ contracts of employment. Therefore the overtime pay must be taken into account in calculating EU holiday pay. This applies only to the minimum of four weeks EU entitlements and not to any other annual leave entitlement. In the UK they have accepted that certain allowances relating to travel were intrinsically linked to the performance of tasks under the contract and therefore amounted to normal remuneration. In the UK their EAT has had to consider whether the UK Law could be read in line with the EU Law or whether they were simply inconsistent. If that was the position then there would be a claim against the state. In the UK case involving British Gas being Lock v British Gas Trading Limited the ECJ held that commission payments must be taken into account. In the UK case of BA v Williams and Bare Scotland this case decided that a worker must be paid for holidays at a rate comparable to normal remuneration received for periods worked and in that case that nonguaranteed overtime should be included in calculating holiday pay. In the Lock case they took the view that there was no difference in principle in so far as pay for annual leave is concerned between non-guaranteed overtime and commission.
Irish Labour Court Here in Ireland the legislation is being changed to provide for holiday pay during periods of sick leave. However, there is no proposal at the present time to deal with the issue of overtime. Either the Irish legislation is in compliance with the EU legislation in which case the existing decisions by the Labour Court are wrong, or the legislation is not in compliance with the directive in which case the decisions of the Labour Court are correct under Irish Law but leave the state open to a claim. Unfortunately, neither of these situations is acceptable. If the Labour Court has not been applying the law correctly then it is a simple matter for it to be applied correctly. In saying this, there is a very strong argument that the Labour Court is properly applying the law as it applies here in Ireland. If that position is correct then there is a significant claim against the State which is going to have to be dealt with. The alternative is whether the Labour Court can perform a linguistic acrobatic exercise to read our legislation in line with the directive. The Labour Court can only go so far in reading legislation in line with the directive and cannot write something which is not there.
Conclusion These issues have been around for some time now. They have not been addressed by the Department of Jobs, Enterprise and Innovation. Failure to deal with these issues is simply going to open up a bonanza for lawyers bringing High Court actions against the State, where the State is going to have to pay considerable legal fees to senior counsel, junior counsel and to solicitors. Should that happen, then there is going to be the usual outcry that lawyers have been jumping on the compensation bandwagon. Never let it be said that we do not highlight potential claims against the State which can be simply avoided by the appropriate legislation being amended. If the claims do start to run against the State, nobody will be able to say that we did not alert the State to the problem. It will be interesting to see how matters develop. P
42 the Parchment
Summer 2015 dsba.ie Susan Martin is the principal of Susan Martin Solicitors and she is a council member of the DSBA
Devil in the Detail Susan Martin reports on the recent case of Bank of Ireland v Finnegan where the issue of the ‘rateable valuation of a property’ caused an upset for the lending institution
t will come as no surprise to practitioners that the law on possession of property by creditors has been well tested in recent years due to the economic crash. A recent decision of Judge Murphy’s may be of interest to those about to come before the Circuit Court in cases for possession, whether for the plaintiff or the defendant. The above case came before the High Court on appeal by the defendants from an order for possession granted by the Circuit Court. The usual sad facts applied in this case – an unpaid mortgage followed by an application by the plaintiff bank for possession of the property. The plaintiff in its Circuit Court civil bill had sought certain reliefs and in accordance with the then requirements of the Circuit Court rules, pleaded that the property had a valuation of less than €254, a then necessary proof. Judge Murphy noted in her judgement that even prior to the establishment of the State, jurisdiction in proceedings is rooted in the valuation of the property. Among the grounds of appeal the defendant advanced the argument that as the premises were not a commercial but a residential property, that the rateable valuation of the premises, the subject matter of the proceedings, could not be proved by the plaintiff. The defendant was, in effect, challenging the jurisdiction of the Circuit Court to grant such an order. The court on reviewing the law found that prior to the commencement of the Valuation Act 2001, it was possible for a residential property to hold a rateable valuation notwithstanding that no rates were levied thereon. Practitioners will be aware that from time to
The court concluded that the Circuit Court did not have jurisdiction to deal with the case and therefore the defendant succeeded on appeal the Parchment 43
There may be an arguable case that unless the plaintiff has pleaded for the jurisdiction correctly that they should not be permitted an order for possession
time a certificate of the rateable valuation of a premises is required, say for example, in the proofs required for licencing. Section 15 of the Valuation Act 2001 however, provided that domestic premises would no longer be valued for rates purposes: “(1) Subject to the following subsections and sections 16 and 59, relevant property shall be rateable. (2) Subject to sections 16 and 59, relevant property referred to in schedule 4 shall not be rateable” Schedule 4 of the 2001 Act then described “any domestic premises” as not rateable. So it appears that the plaintiff having pleaded that the property held a rateable valuation of less than €254 is then left in a position where this cannot be proved due to Section 15 of the Valuation Act 2001. This was because the property in this case was constructed in 2006, or after the commencement of the Valuations Act 2001, which was in May 2002. Judge Murphy notes that the Oireachtas considered this lacuna in S45 of the Civil Liability and Courts Act 2004 which provided that the proof regarding valuation of the property would no longer be linked to its rateable valuation, but instead be linked to its market value, providing Circuit Court jurisdiction for market values of less than €3,000,000. However this provision has never been commenced by the Minister for Justice in accordance with Section 1(2) of the Act rendering it
irrelevant for the purposes of jurisdiction. The court then looked at the Land and Conveyancing Reform Act 2009 regarding jurisdiction. Section 101(5) of the Act provides that suits for possession pursuant to home loans must be made in the Circuit Court. However, this would only apply to mortgages created after December 1st 2009. The mortgage in this case was created in 2006, therefore rendering this provision inapplicable in this case. This loophole was closed by the Oireachtas in 2013 which provided that the 2009 Act applied to mortgages created prior to December 1st 2009. As the proceedings had commenced in this case prior to 2013, this provision was not applicable. The court concluded that the Circuit Court did not have jurisdiction to deal with the case and therefore the defendant succeeded on appeal. What does this mean for the practitioner? I set out below a table which may be of assistance. With proceedings issued post 2013, it is worth checking how the jurisdiction is pleaded – that is, is the plaintiff invoking the jurisdiction of the Circuit Court by Land and Conveyancing Act or by reference to the rateable valuation of the property. There may be an arguable case that unless the plaintiff has pleaded for the jurisdiction correctly that they should not be permitted an order for possession. This case highlights that the devil is indeed in the detail and that it can be the small things that trip up a case. P
Property built prior to 01/05/2002
Mortgage created prior to 01/12/2009
Proceedings issued prior to 31/07/2013
Correct Jurisdiction is Circuit Court if certificate of rateable valuation obtained
Property built post 01/05/2002
Mortgage created prior to 01/12/2009
Proceedings issued prior to 31/07/2013
Correct Jurisdiction is High Court as certificate of rateable valuation cannot be obtained
Property built prior to 01/05/2002
Mortgage created after 01/12/2009
Proceedings issued prior to 31/07/2013
Correct Jurisdiction is Circuit Court if rateable valuation obtained
Property built prior to 01/05/2002
Mortgage created after 01/12/2009
Proceedings issued post 31/07/2013
Correct Jurisdiction is Circuit Court if Section 101(5) is pleaded
As per Murphy J Bank of Ireland v Finnegan
44 the Parchment
Abacus Law Costs For all your legal costs requirements
• Pre-separation consultations • Negotiation of child-centred access agreements • Custody & access assessments • Section 47 reports • Attachment assessments • Panel of Guardians ad Litem available for appointment nationally. • Parent mentoring • Specialist training We are a growing team of childcare experts available nationally, with extensive experience in this area. Every effort is made to support parents to achieve positive outcomes.
Email: email@example.com Office: 045 943797 Director: Orla Ryan B.Soc.Sc.,M.Soc.Sc.NQSW
CCS House, 6-9 Trinity St, Dublin 2. T: (01) 612 7041 | F :(01) 612 7042 E: firstname.lastname@example.org
24/06/2015 ‘Get your free online quote now’ 31945_Child 14:17 & Family 1/4.indd
32324_Abacus Law Costs.indd 1
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.
✓ 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. ✓ Summary, for quick reference.
Being a lawyer can be very rewarding, but it can also be very challenging. When it all gets a bit too much, you can turn to LawCare. We oﬀer a completely free and condenal support service, and can refer you on for further help where needed.
Over 12,000 solicitors and their clients have already chosen Property Health Check for their Building Surveying needs. Check out our website which includes pages of testimonials from satisﬁed clients
1800 991801 www.lawcare.ie
Solicitor’s testimonials available on request
LawCare Ltd. Registered as a charity in England and Wales no. 1061685 and in Scotland no. SCO39335.
Phone No. 01-6281040 Email, email@example.com Professional Service, Comprehensive PI Insurance Cover.
32292_property health check 1-4.indd 1
4 quarters.indd 1
29/06/2015 17:0514:18 24/06/2015
How Effective is your Website? Given the growth of the internet over the last 10 years and the now obligatory nature of a website for businesses, Greg Ryan finds out what you need to think about when you are creating your website and what you need to do once it’s up and running
ince the advent of the smartphone, the necessity of having a website or at least an online presence to identify your business to your customers has become essential. I spoke to a number of website designers to find out what you should be thinking about when designing your website and how best to go about putting that into effect. First, I spoke to Steven Dunne of Light Year Web Design, a small firm who specialise in SMEs. Steven advises that before thinking about the website, you need to think about what you want to achieve. What type of website do you want, is it going to be a simple online brochure, is it going to be an e-commerce site, is it going to be a business blog or it is going to be a vanity project? What do you want it to do? Do you want it to attract new clients? Do you want it to be a reference source for your clients to look at? Do you want it to be a source of promotional material that press and others will seek to tap into? He stressed that it’s very important for a website to form a part of your ongoing marketing plan, and not simply to constitute the whole of it. Too many business owners spend a lot of time and effort putting up a website and then promptly forget about it and do nothing else with it. At the very least you need to review the search engine optimisation (SEO) on a regular basis with a professional who knows what they are doing, so as to best place your website in Google search engine results. This is particularly important given the latest changes to Google’s algorithms which came in at the end of April. The latest and most important change relates to mobile websites. If you don’t have a mobile website now, Google will push you down the rankings. They take the view that the majority of people, over 70% now view websites from their mobile devices (i.e. their smartphones or tablets),
and if you are not going to bother having a website that is adapted for mobile, then Google will give precedence to those websites that do. It is also very important to write good content. You have about 10 to 15 seconds when a surfer hits your webpage to try and get them to stay before they bounce off into something else. If your content is too stilted or simply uninteresting, they won’t stick around. Furthermore, people don’t read anymore, they skim. Headings incorporated into the body of the website at regular intervals can be a very good way of getting them to pick up information quickly but they need to be on point. Imagery is good if used properly but not for the sake of it. A quick search of law firm websites will show you as many different pictures of the Four Courts as you could ever wish to see. Those lawyers want to confuse their identity with all the others, not highlight their particular differences or skills it seems. The layout and architecture of the site is very important. What do you want to do, and why? For example, many websites have contact details on a separate page, but if your website has a call to action and you want people to contact you, then your contact details (address, phone number and email address) should be at the bottom of every page and as easily accessible as possible. With the growth of Google Maps, location maps are becoming a much bigger part of the website. Put in a map that links into Google Maps which will show people browsing how to get to your offices quickly and efficiently. Most websites – over a quarter of the world’s websites are written on Wordpress which is a free resource. It is well maintained but it is very important to make sure that the Wordpress updates are regularly installed, as otherwise your site security may be at risk. The bigger a company gets on the internet, the more internet trolls want to hack
46 the Parchment
Summer 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
it and obviously, Wordpress is no exception. While Wordpress is reasonably straightforward, there are easier website programmes out there to use. I met with Dan Mulcahy who is running one of the simpler training courses which will teach you how to use a programme called Wix. There are 50 million websites currently hosted on Wix of which 48.5m are free, and the balance start at about €100 per year. Wix is comparable with Wordpress in terms of performance, SEO and so forth but it is easier for the non-techie person to use and to remember. If one is familiar with Word or Excel, then you will be familiar with the basic techniques to produce ad images, text, etc. The course runs for four Wednesdays in a row and participants learn all the basics on the course. Not only that, when they leave the course, they will have a fully functioning website for their own company, which starts with a properly built homepage, contact page and about us page, a blog and a host of webpage templates that they can use to put up whatever content they wish. I asked Dan whether the course covered search engine optimisation and so forth and he advised me that the sites are set up to allow Google to index (understand) them, and he gives an outline of the key parts of SEO. He does
advise that SEO is a little like PR and advertising, you need to keep at it and then get advice from a specialist from time to time. Wix will also add links to the social media sites and Twitter feeds and put in Facebook buttons etc, if you wish. For those more adventurous you can add on e-commerce components, anything from a simple shopping cart to an elaborate store. There are other programmes out there which are equally good, namely Weebly or Squarespace but Wix is probably the simplest. Dan’s course costs €800, which in essence is the cost of your website. Of note is that local enterprise offices will give grants for websites, up to half the cost of the website, up to €2,500. It’s worth your while shopping around to find out what grants are available. I asked Steven Dunne how much a relatively straightforward website for a solicitor’s practice would cost and he estimates starting at €1,500 upwards depending on what you want or need. He warns that building the website is not the most expensive part of the process – but the planning, the site layout, and developing an internet marketing strategy takes time, and as we all know, time costs money. P the Parchment 47
Online dispute resolution - coming down the track? A recent report by the Online Dispute Resolution Advisory Group of the Civil Justice Council, is calling for radical change in the way the court system of England and Wales handles low value claims. The report recommends the introduction of an online dispute resolution service (ODR) to deal with civil claims up to ÂŁ25,000. Joan Callan delves into the report which provides for an interesting and alternate way to dispute resolution and she poses the question, is such a system possible in Ireland one day?
lthough the terms of reference were restricted to civil claims up to ÂŁ25,000, the report recommends that the jurisdiction should also be extended to suitable family disputes and to appropriate cases that come before tribunals. As a first step, the report calls for piloting of ODR and proposes a launch date of 2017. The report, which can be accessed at www. judiciary.gov.uk/reviews/online-dispute-resolution, provides examples of online civil dispute resolution internationally. For example, in the Netherlands, an online service was developed for the Dutch Legal Aid Board. The first service is for family law disputes and includes divorce and ancillary matters such as custody, maintenance etc. Landlord and tenant and neighbour disputes are planned for the future. The report states that the aim of the new online dispute resolution service is to broaden access to justice and to resolve disputes more easily, quickly and cheaply. It is suggested that access to justice should be viewed broadly and subdivided as follows: dispute avoidance, dispute containment and dispute resolution. The view is taken that the current system focuses more on dispute resolution and it is argued that investment in containment and avoidance would greatly reduce the number of cases coming before the courts.
Essentially, the report envisages a three-tier system. Tier one, dispute avoidance â&#x20AC;&#x201C; online evaluation would involve the parties being invited to outline their grievance and to categorise their claim. At this stage, the parties would be made aware of their rights, obligations, their options and remedies. Tier 2 would provide dispute containment in the form of online facilitation. There would be individuals communicating online, who would review papers and statements and assist the parties through advice, mediation and negotiation to resolve the dispute without the use of judges. There would be telephone conferencing facilities where necessary, and some automated negotiation to help resolve differences without the intervention of human experts. Only if 1 and 2 were unsuccessful, would the claim progress to Tier 3, dispute resolution. Judges would determine the case (or parts of the case) online, substantially on the basis of papers submitted electronically. This process would be supported where necessary, by telephone conferencing facilities. Furthermore, the judge would have the discretion of referring cases to court, for example, where credibility of a witness is better judged in a physical courtroom. Ultimately, it is envisaged that two further generations of the ODR system would follow. The main characteristic of the second generation system
48 the Parchment
Summer 2015 dsba.ie Joan Callan is a solicitor in the medical negligence unit of the Legal Aid Board
would be the addition of video technology. The third generation system would be those that are enabled by artificial intelligence. However, the report does not anticipate that artificial intelligence-based systems would replace human online judges. It is proposed that the decisions of online judges would be subject to the same rights of appeal as in conventional courts and that parties would have the option to choose between the online court and the conventional court system.
Comment So one might ask whether online civil courts should be introduced in this jurisdiction? It is generally accepted that our civil courts are slow, costly and cumbersome. Technology has many benefits to offer in terms of achieving effectiveness and increasing efficiencies and I believe that its use should be seen as an opportunity rather than a threat. Any move in the direction of online courts would of course, require safeguards in terms of reliable and secure technology to ensure confidentiality and security given the potential risk of hacking. However, one must balance accessibility against fairness and consider whether a fair trial can be delivered over the internet. Oral hearings are at the heart of our justice system and there are benefits to the formality, swearing on the bible and the oral hearing. How often has a lawyer seen a “good” case on paper disintegrate on cross examination? Also, witnesses play a vital role in our judicial system. Is there any substitute for face-to-face contact when it comes to deciding credibility of a witness? We must also bear in mind that our Constitution provides that justice should generally be delivered in public. However, the Injuries Board has been very successful and justice is not delivered in public in that process, so this right is not absolute.
It is unlikely that an online system would replace our traditional courts as “real live” courts are essential in certain cases, but I envisage that it may at least operate as part of our civil justice system in the future
Potential suitable cases for an online court may include small claims up to €2,000 (the Small Claims Court already has an online application process); appropriate district court cases including licensing, debt collection and straightforward cases where liability is not in dispute. It may also be suitable for matters that fall within the remit of the Injuries Board. It would not be appropriate for complex disputes, although parts of cases could possibly be decided online e.g. motions. It is debateable whether it would be suitable for family law in particular, or cases where the welfare of children is at stake. However, it may be suitable for district court maintenance cases and judicial separation and divorce cases where there are no children/assets. We certainly need an innovative approach to address the challenging problems in our courts in a long-term strategic way and to ensure that we are administering justice effectively as well as fairly. An online civil court for certain classes of dispute, is more than likely inevitable but it may be some years before it is introduced. It would of course, require a change in legislation and new court rules. Considering the current focus on mediation, it would also be beneficial to have a more integrated approach to dispute resolution in our courts incorporating dispute avoidance and dispute containment at an early stage. It is unlikely that an online system would replace our traditional courts as “real live” courts are essential in certain cases, but I envisage that it may at least operate as part of our civil justice system in the future. We should proceed cautiously, watch and learn from other jurisdictions. We are awaiting online filing of documents with the courts which is an essential first step before online courts are introduced. Food for thought – in the future, will some civil disputes in Ireland be administered by robots in virtual courts? P the Parchment 49
Circuit Court infant rulings President Raymond Groarke recently stated that any applications for payments out in infant settlements are to be mad0e to the county registrar. I checked with the court staff, and they indicated that payments out may still be made at the time of ruling. All subsequent applications are to be made to the registrar. DSBA Litigation committee
New Companies Act breakfast seminar The Commercial Law committee held a CPD breakfast seminar on the morning of June 11th 2015 at William Fry Solicitors in Dublin. The seminar was the second in the series of seminars the Commercial Law committee is holding this year on the topic of the new Companies Act, 2014 and which had come into effect just 10 days beforehand on June 1st. Speaker Conor Sweeney, (managing director of CLS
Chartered Secretaries and past President of the Institute of Chartered Secretaries and Administrators, Irish Region), gave the attendees a practical insight into the Act from a company secretarial perspective. The talk focused on how solicitors can best deal with managing companies transition to the new legislation and in particular, the conversion of existing companies into private companies limited by shares or
designated activity companies. The talk also reviewed the areas of the new procedures for registration of charges in the CRO and the new directors loans rules. The presentation was then followed by a Q+A. The Commercial Law committee would like to thank Conor Sweeney for his presentation and are most grateful to William Fry Solicitor for generously hosting the seminar.
The Solicitor’s Guide to Marketing and Growing a business
How to turn your legal practice into a financial success Flor McCarthy, 2015 The world is full of business books bought on impulse which sit idly on shelves gathering dust before they are finally consigned to the rubbish bin. Flor McCarthy’s book is not one of those. As a former reader of these business books and a reluctant commerce student in the 1980s, I’ve had to put up with more than my fair share of business and marketing guff. Flor’s guide, and it is a guide in the best sense of the word, is simply of a different calibre. It is a guide for practising solicitors in small firms by a solicitor in a small firm. You will read this book in a few hours but will spend considerably more time implementing his management tips. His guide takes you from the comfortable, self-satisfying myth that good solicitors don’t need to promote their practices on a bumpy journey towards planning
a practice using the latest technology. He lastly focuses on the most important component of a successful practice – managing yourself. This highly readable book is peppered with quotes, but the most unusual (and hilarious) is one from Dave Barry which I had to glance at twice and which starts Flor’s chapter on Managing Distractions. “Meetings are an addictive, highly self-indulgent activity that corporations and other organisations habitually engage in only because they cannot actually masturbate”. As you can gather, he’s not a fan of meetings. He is a fan of following up clients, of courtesy, of reasoned planning, of using the latest technology but most of all he’s a fan of figuring out what you are doing and where you are going
before you set off on a wild goose chase. Almost every sentence in this book is relevant to solicitors seeking to better manage smaller practices. Like the best doctors, he takes his own medicine and his website is full of ways to implement the philosophy and management techniques in his book. Flor has done the solicitors’ profession some service and he’s only getting started. Move over black pudding, Clonakilty’s most famous export will soon be Flor McCarthy. Flor McCarthy is a practising solicitor in Clonakilty, County Cork. The Solicitor’s Guide to Marketing and Growing a business is available from www.thesolicitorsguide. com; €24.97 plus postage [from Clonakilty] Keith Walsh
50 the Parchment
Summer 2015 dsba.ie Simon O Neill is a solicitor with McKeever Rowan Solicitors and a member of the DSBA Business Law committee
Regulation of Debt Management Firms Simon O’Neill looks at the Central Bank’s recent review of the activities of debt management firms and how they operate
n February 2015 the Central Bank published a review of the activities of debt management firms (DMFs) in which it identified various shortcomings by DMFs in terms of their obligations under the Consumer Protection Code including instances of: • Failure by DMFs to record sufficient information on file to assess the needs and personal circumstances of consumers on which they base their advice; • Lack of information and transparency on DMF fees; • Poor compliance on the provision of terms of business documentation to consumers; • Certain staff of DMFs had not undertaken the appropriate examination/qualification required under the minimum competency code. Debt management firms became subject to authorisation and regulation by the Central Bank in 2013 pursuant to the Central Bank (Supervision and Enforcement) Act 2013 (“the 2013 Act”) and are subject to minimum competency requirements enforced by the Central Bank. A DMF is defined in the legislation as: “A person who for remuneration provides debt management services to one or more consumers, other than an excepted person.” Barristers, solicitors or accountants who provide debt management services only in an incidental manner and is subject to regulation by a professional body are amongst the definition of “excepted persons” in section 28 of the Central Bank Act 1997 as amended by the 2013 Act. Debt management services are defined as: a) Giving advice on the discharge of debt (in whole or in part) including advice about budgeting in connection with the discharge of debts. b) Negotiating with a person’s creditors for the discharge of a person’s debts (in whole or part). c) Any similar activity associated with the discharge of debts. Chapter 13 of the Consumer Protection Code (Version 2015) sets out the Central Bank’s requirements in respect of DMFs in full, including certain additional requirements which were introduced by the Central Bank in November 2014. The additional measures introduced comprise:
• Prohibitions on the payment for client referrals or client leads; • A prohibition on a DMF contacting a consumer without his/her express consent; • Prohibitions on arranging credit for payment of DMF fees or services; • Prohibitions on DMFs preventing clients dealing directly with creditors; • Requirements for DMF to obtain prior written agreement from consumers to DMF fees and fee structure and provide standard information and documents re: DMFs; • Provision of written statements of advice to consumers by DMFs explaining their advice and options available and consequences to consumers. • Identification of any cost savings, any fees or charges arising and any fee, commission or monetary benefit payable to the DMF in respect of the advice to its consumer. Generally speaking a DMF may not make payments or hold funds on behalf of clients unless they hold an appropriate authorisation for such a payment, institution or money transmission business under the EC (Payment Services) Regulations 2009 or Part V Central Bank Act 1997. A DMF must provide written statements to a consumer every six months, detailing the activities completed during the six months and fees charged. The overall tenor of the measures reflect the position of responsibility and trust which DMFs hold in dealing with consumers in very vulnerable circumstances. P the Parchment 51
Helping Haiti Ide O’Neill, a member of the DSBA Young Members Committee went to Haiti in April as part of a volunteer group with the charitable NGO, the Haven Partnership. She tells the Parchment about her experience
work for LK Shields, who are the official corporate partner to the Haven Partnership, an Irish NGO working solely in Haiti to facilitate the provision of adequate water, sanitation, shelter and education solutions for vulnerable Haitians. As part of its sponsorship of Haven, the firm has pledged to send a volunteer to Haiti to take part in Haven’s volunteer week in 2015, 2016 and 2017. I was lucky enough to be chosen to travel in 2015. On April 24th, together with 29 other volunteers from Ireland, Canada and the US, I travelled to Haiti. We landed into Port au Prince which was a shock to the system with its extreme pollution, poverty, crime and overcrowding. From there, guarded by security, we started our journey by bus and boat to Ile a Vache where we would be based for the week. Looking out the bus window at the shantytowns and poverty that surrounded us as we departed Port au Prince, I realised how lucky I was to have been born in Ireland. While my life can often be stressful and demanding, being surrounded by people struggling to survive made my everyday complaints of being too busy or not having enough free time seem so petty. Upon arrival in Ile a Vache the volunteer group was divided into five teams – a carpentry team, a DIY team, a painting team, a path building team and a tree planting team. Work included improvements to the orphanage in the village of Madame Bernard where a leaking roof was repaired, a library was constructed and a playground was upgraded and repaired. A
concrete path was also laid on the steep mud track between the orphanage and the village as the track was previously impassable in bad weather. I was assigned to the tree planting team. Our aim for the week was to plant 3,000 cherry trees in homes across Ile a Vache. The hope is that the cherries will give the locals healthy fruit to eat and a product to sell at the markets. Each day, guided by locals, we walked the island in groups of two volunteers planting trees at each house. In heat in excess of 30 degrees with high humidity the work was demanding but very rewarding. It gave us a first-hand insight into Haitian life and the opportunity to meet with so many of the inhabitants of the island as they went about their everyday lives. Conditions varied across the island with some living in stone structures while others lived in straw huts but all were grateful for our gift of cherry trees. Leaving Ile a Vache was hard. While I was physically exhausted and glad to be leaving the rats, tarantulas and poor sanitation behind me, it was difficult to turn your back on the children in the orphanage and the community that had adopted us for the week. I have, however, returned home with a renewed gratitude for the life that I have and the hope that I have made a difference, however small, in the lives of people less fortunate. P If you would like to make a donation towards Haven’s great work in Haiti please visit http://www.mycharity.ie/event/ ideoneill/
52 the Parchment
Summer 2015 dsba.ie
Specialist Accreditation for Solicitors Specialist accreditation is offered in international jurisdictions by legal professional bodies to practitioners with demonstrated knowledge in a particular area of law or practice. These are often described as “specialisms” or “accredited practitioner” schemes. Once a practitioner is accredited in a particular area of law or practice, they may advertise themselves as, for example, an “accredited specialist” in that area of law or practice in publicity materials. Solicitors currently may not claim specialist knowledge “superior to that of other solicitors” by stating for example, “employment law specialist”, in advertisements or other communications. The June 2015 Law Gazette included an article exploring recommendation no 13 of the Report and Recommendations of the Future
of the Law Society Task Force (2013) which provides that: “The society should pursue the provision of specialist accreditation as a member service offering”. The Law Society is now seeking the views of solicitors on this important proposal by completion of a short survey which can be accessed online in the members’ area of the society’s website www.lawsociety. ie/specialismsurvey.
Work of the Practitioners’ accreditation subcommittee The Law Society has set up a practitioners’ sub-committee to consider the recommendation that the society should introduce a specialist accreditation scheme in particular areas of law or practice. With consumer protection in mind, it has been decided that initially three
broad areas of law or practice, namely criminal law, employment law and family law including child law should be considered for such “specialist accreditation”. The process for, and offering of, specialist accreditation schemes in other jurisdictions including Scotland, England and Wales, Australia and the US, is currently being considered by this sub-committee. As part of the eligibility criteria for specialist accreditation in a particular area of law or practice in these jurisdictions, all or some of the following qualifying requirements are specified: such as the applicant holding an unrestricted practising certificate for a minimum specified number of prior years; involvement in the conduct of complex case work; written examinations and undertaking CPD hours in that
What is your view? The sub-committee would welcome receipt of written submissions from bar associations and individual firms/ solicitors on the proposal. The submissions may be emailed to Yvonne Keating, solicitor at firstname.lastname@example.org or Valerie Peart, solicitor at email@example.com. Members’ views received via the specialist accreditation survey and written submissions will assist in the Law Society’s important decision whether the proposal should proceed to fruition. Yvonne Keating, is a solicitor at the education department of the Law Society and secretary of the Practitioners’ Accreditation subcommittee
Survey Shows Pro Bono Work by solicitors is alive and well The first ever survey on pro bono legal work in Ireland has revealed a strong and growing appetite among the legal professions for providing help to those who cannot afford it. Despite recognition of pro bono as something that lawyers typically do as part of their work, this study shows that such work, done for the public good without any expectation of payment, needs to be more structured and more visible in legal businesses. PILA (Public Interest law Alliance) was set up by FLAC in 2009 to promote public interest law in Ireland, building on its existing programmes for volunteer advice to the public. PILA’s pro bono referral scheme matches the legal needs of campaigning social justice organisations with the voluntary skills of lawyers and
law firms. PILA estimates that several thousand people have benefitted from assistance provided through the scheme to organisations of which they are clients. PILA co-ordinator, Rachel Power, who conducted the survey at the end of 2014, commented: “We have seen increasing enthusiasm from lawyers to get involved in pro bono that is structured and targeted. PILA aims to make it easier for lawyers to do this work and for organisations to get the legal help they need. “With the study, we wanted to gauge the attitudes of our own legal volunteers as well as the wider profession; we wanted to start a conversation about the value of this work, its place in the legal sector and what it might look like into the future.” Some 464 individual solicitors
and barristers responded to the survey from all over Ireland. Almost three-quarters of those say they have done legal work for free in their career with almost 40% doing pro bono work regularly. Most of the legal work being offered for free involves legal research, advice or document drafting (62%) followed by providing legal advice in a clinic (33%) and representation (21%). In doing pro bono, lawyers stated they were less concerned with ‘business’ outcomes, being more interested in personal satisfaction and with fulfilling a sense of social or professional responsibility, ‘wanting to give something back’. Just under three-quarters of solicitors and over half of barristers surveyed said time was the biggest obstacle to doing pro bono work. Among those who currently
are not involved in pro bono, many say they find it difficult to identify such work or to hear about opportunities for doing it. The survey also contains a section on law students, many of whom have already been involved in pro bono work and the majority of whom (86%) plan to do pro bono work when qualified. According to FLAC director general, Noeline Blackwell, “Despite Shakespeare’s injunction to ‘kill all the lawyers,’ FLAC’s experience is that pro bono work is embedded in the legal profession in a way that it is not embedded in other types of work, and that it gives a pathway to thousands of people who would otherwise be denied access to justice.” The survey is available to download at www.flac.ie and www.pila.ie the Parchment 53
Below: DSBA Younger Members’ committee
Below: John Lavelle, BL, Frances Flynn, Arthur Cox
The New Companies Act seminar On May 19th 2015 the DSBA Younger Members’ committee (formerly the YDS committee) held its first CPD seminar of the year in the offices of Arthur Cox. The topic was The New Companies Act 2014, an Overview of the Key Changes. Informative presentations were given on the evening by Dáibhí O’Leary, an associate in the company compliance and governance group at Arthur Cox, and John Lavelle, BL, a barrister who specialises in commercial, insolvency and financial services law. The DSBA Younger Members’ committee were delighted with the large turnout of over 80 attendees. The New Companies Act 2014 came into effect shortly after the seminar and runs to more than 1,100 pages comprising 25 parts, 17 schedules and over 1,400 sections. Dáibhí O’Leary provided an insight into the background to the Companies Act 2014 and discussed the key feature of the act which is the creation of a Designated Activity Company (DAC) and a new form Model Private Company (Ltd). Dáibhí discussed the practical implications of opting for either of these models or another type of company and discussed
Above: Laura Horan, MacGeehin Toale, John Lavelle, BL, Marguerite Seymour, William Fry, Dáibhí O’Leary, Arthur Cox
what directors should be doing during the transition period. Dáibhí also highlighted the primary obligations being imposed on directors under the Companies Act 2014, one of which is the completion of a directors’ compliance statement and the key innovations which includes the introduction of a new summary approval procedure which can be used by companies to authorise certain “restricted activities”. John Lavelle, BL, focused his discussion on the changes applicable to the registration of charges, the powers of receivers, the changes to the examinership regime and to the law on winding up. John also highlighted several important changes to the law on restriction and disqualification. The presentations were followed by a Q&A session on the new legislation. The DSBA Younger Members’ committee is very grateful to both Dáibhí O’Leary and John Lavelle, BL, for their time and effort and for providing such interesting analysis of the new act and how it will affect the future of company law in Ireland and would like to thank them for their contributions to what was a very successful seminar.
Above: Dáibhí O’Leary, Arthur Cox
54 the Parchment
Summer 2015 dsba.ie
Check us Out The DSBA Younger Members group has its very own site within a site under the roof of the main DSBA website. To find our more on what the DSBA Younger Members are and also who are committee members as well as details of our upcoming seminars and events, please visit: http://www.dsba.ie/young-dublinsolicitors.215.html You can also connect with the DSBA Younger Members via LinkedIn where the members actively post interesting articles and quirky stories for your information and enjoyment as well as the latest information on our upcoming seminars and events. Check us out on Linkedin: https://www.facebook.com/ pages/DSBA-Younger-Members/275970955920785 The Younger Members of the DSBA also have a Facebook page which is updated regularly so please follow and share all interesting information: https:// www.facebook.com/pages/DSBA-YoungerMembers/275970955920785.
The YDS (Young Dublin Solicitors) is now known as the DSBA Younger Members.
We are a sub-committee of the DSBA and represent the interests, both professionally and socially, of the younger and most newly qualified members of the profession. We seek to organise low cost CPD events, lectures and social events so that you can both meet your professional requirements and network with your peers. Your co-chairs: Laura Horan & Marguerite Seymour
For details of our upcoming events please join our DSBA Younger Members group on Linkedin, our Facebook page and our Twitter page. Please also check the DSBA website regularly.
Seminar: Working the Room - How to Network Effectively CPD: Two hours - Management and Professional Development Skills Speaker: Gavin Duffy Where: William Fry, 2 Grand Canal Square, Dublin 2 When: Thursday, July 9th 2015
Solicitors’ Soccer League 2015 The DSBA and its Younger Members’ committee are delighted to announce that the Solicitors’ League has once again commenced in late May 2015. A total of 17 teams have entered, which is one more team than last year. There are teams representing some of the larger firms, teams from smaller practices and also a team from the Law Library. Last year’s tournament ended up with Arthur Cox beating Matheson 2-0 in an enthralling final. Criminal Fraternity won the Fair Play award. So far, the weather has held up its end of the bargain, with some cracking evenings allowing all teams to play to their full potential, with a fast, free-flowing style of football regularly on display. The final will take place in September. Full details in relation to fixtures, results and the all-important league tables are available on www.dsba.ie the Parchment 55
IS THIS YOUR COPY OF THE PARCHMENT? ARE YOU ON OUR MAILING LIST?
If not, please contact Maura Smith. Dublin Solicitors Bar Association, 1st Floor, 54 Dawson Street, Dublin 2, Ireland. Tel: 01 670 6089 • E-Mail: firstname.lastname@example.org • Update your personal details online at:
Is this your copy-Filler full page.indd 1
Summer 2015 dsba.ie Photography: Michael Finn
The DSBA Litigation committee hosted a CPD seminar on April 21st 2015 entitled Defamation Law and Practice Overview and Update. The speakers were Declan Doyle, SC; Joe O’Malley, Hayes Solicitors and Shane English, BL. The seminar was chaired by Mr Justice Donal O’Donnell, judge of the Supreme Court.
Above: LtoR: Speakers Shane English, BL; Declan Doyle, SC; Mr Justice Donal O’Donnell; Joe O’Malley, DSBA Left: Mark O’Shaughnessey, A&L Goodbody; Aimee Lenehan, William Fry
Right: Kerry Lyons, Erne Solrs; Caroline Quigley, Rory Quigley & Co. Far right: Louise Holmes, Byrne Wallace; Valerie Hourigan, Byrne Wallace
Left: Joanne Campbell, Tormey; Ciaran Lawlor, Lawlor & O’Reilly. Far left: Gerard Prendeville, Newmans; Killian O’Reilly, McDowell Purcell Right: Shane English, BL; Elaine Morrissey, Newmans. Far right: Trish Whelan, RTE; Judith Fanning, RTE
the Parchment 57
Photography: Michael Finn
The DSBA Property committee hosted a CPD seminar on April 29th 2015 entitled New Builds in New Times - Part 2, Commercial. The speakers were Patrick Sweetman, Matheson; Angelyn Rowan, Eversheds and Deirdre Ni Fhloinn, Reddy Charlton
Right: Roisin Bennett, Reddy Charlton; Sheila O’Sullivan, Law Society; Helen O’Connell, Sherwin O’Riordan; Aine Gleeson, Hayes Solrs. Below: John Murphy, John A Sinnott & Co; Angelyn Rowan, Eversheds Left: Ashleigh Ward, Gleeson McGrath Baldwin; Niamh O’Grady, Mason Hayes & Curran; Deirdre Walsh, A & L Goodbody
Left: Nicola Dawson, Reddy Charlton; Brendan Sharkey, Reddy Charlton; Jonathan FitzGerald, BL. Below: Ray Smith, Smith Foy & Partners; Aideen Dennehy, Smith Foy & Partners; Roger McCormack, Rutherfords Above: Michael Crowley, Patrick F O’Reilly; Michael O’Shaughnessy, Patrick F O’Reilly. Right: Maura Donnelly, M Donnelly; Caroline Lindsay, CSSO
58 the Parchment
Summer 2015 dsba.ie Photography: Michael Finn
Commercial Law Seminar
The DSBA Commercial Law committee hosted a CPD seminar on May 12th 2015 entitled The New Companies Act 2014. The speakers were Lyndon MacCann, SC; Kevin Prendergast, Office of the Director of Corporate Enforcement and Maureen O’Sullivan, Registrar of Companies
Above: Kevin Prendergast (speaker); Lyndon McCann SC (speaker) Left: Niamh O’Dwyer, Niamh O’Dwyer Solrs; Hilary Clarke, Arthur McClean
Right: David Turner, David M Turner Solrs; Beverly Turner, Taylor Buchalter. Far right: Anne Dolan, Dolan & Co; Andrea McNamara, O’Connel Brennan; Carol Hogan, O’Connel Brennan
Left: Clodagh McNamara, O’Grady Solrs; Amy Field, O’Grady Solrs. Far left: Liam Guidera, Mason Hayes & Curran; Stephen Maher, Maher Broderick; John Larkin, William Fry Right: Rachel O’Malley, KBC Fund Management; Frank Murray, Murray Flynn Maguire; Laura Hannon, Maples & Calder. Far right: James McCourt, O’Mara Geraghty McCourt; Martin Moran, Martin Moran & Co
the Parchment 59
Photography: Michael Finn
The DSBA Litigation committee hosted a CPD seminar on May 20th 2015 entitled Personal Injury Update - Damages, Ancillary Damages, Recoveries and RBA Certificates. The speakers were Liam Reidy, SC; Claire Hogan, BL, and Ben Mannering (State Claims Agency). The seminar was chaired by Mr Justice Bernard Barton, judge of the High Court.
Above: Darragh Lenehan, AXA Legal Service; Jonathan White, Jonathan White & Co. Right: Aine Duggan, Byrne Wallace; Louise Holmes, Byrne Wallace Left: Patrick Ryan, Ambrose O’’Sullivan; Jennifer O’Riada, O’Riada Solrs. Far left: Deirdre Fagan, AXA; Sinead Durcan, Good Murray Smith
Left: Sarah Breslin, Stowe Solrs; Margaret McGinley, State Claims Agency. Below: Sean Murray, CSSO; Robert Alexander, McCormack Solrs Above: Orlaith Traynor, Gill Traynor; Shea Cullen, Shea Cullen Solrs. Right: Nigel Allen, Nigel Allen Solrs; Emily Sexton, Agustus Cullen Law
60 the Parchment
Summer 2015 dsba.ie
Photography: Michael Finn
The DSBA Property committee hosted a CPD seminar on May 26th 2015 entitled Banking Law for Property Lawyers. The speakers were Piaras Power, Eversheds; Tony O’Sullivan, Beauchamps and Darragh Blake, Eversheds.
Above: Alex Hoffman, PJ O’Driscoll & Son; Louise Jennings, Start Mortgages. Left: Kate McNamara, Baily Homan Smyth McVeigh; Emma Scott, Baily Homan Smyth McVeigh
Right: Majorie Murphy, Murphy McElligott; Maura Donnelly, Maura Donnelly. Far right: Anne Harte, CBW Boyle & Sons; Anne Doyle, William Fry; James Kelly, William Fry
Left: Malachy Kearney, Kennedys; Jane McCarthy, Kennedys. Far left: Dermot Sherlock, Lee and Sherlock; Ray Fitzpatrick, Augustus Cullen Law Right: Conor Halpenny, PCL Halpenny; Mairead Cashman, DCC. Far right: Tony O’Sullivan, speaker; Seamus O’Halloran, CSSO
the Parchment 61
DSBA annual dinner and Law Book Awards
The annual DSBA dinner and Law Book Awards took place at the DoubleTree by Hilton Hotel, Dublin 4 on June 26th 2015. Guest of honour was Minister for Justice and Equality, Frances Fitzgerald, TD. For a full report on the Law Book Award winners, go to pages 18 and 19.
Above: Paul Gallagher, Niamh Martin and Paul Ward, Thompsons Reuters. Right: Niamh McAlonan, Deirdre Morrissey Left: Susan Martin, DSBA council member; Elaine Given, Gallagher Shatter. Far left: John Oâ&#x20AC;&#x2122;Malley, AvantCard; Aaron McKenna, President DSBA, Deirdre McKenna, Peter Boyle
Right: Pat Culleton, Paul English, Stephen Fitzpatrick, Peter Fitzpatrick & Company. Below: Chandler Clifford, Jennifer Simpson, Louise Leavy, Bloomsbury Professional Above: Anita Gallagher, Fergus Gallagher, Julia Culleton. Left: John Morrissey, John Quane, William Cummins, Bloomsbury Professional
62 the Parchment
Summer 2015 dsba.ie Photography: Nigel Gault
Above: Marie McQuaid, Elena Harnett. Left: Kevin O’Higgins, President Law Society; Paul Dougan, Chairman Belfast Solicitors’ Association; Peter Groarke, Southern Law Association; Aaron McKenna, President DSBA
Right: David Barniville, Chairman of the Bar Council of Ireland, John Geary, Editor of Parchment Far right: Fiona Fahy, Eugene F Collins; Minister Frances Fitzgerald; Anna Keohane, Eugene F Collins
Left: Maura Smyth, Martin McCann, Pauline Ward, Thompsons Reuters Far left: Keith Walsh, KW Solicitors; Aaron McKenna, President DSBA; Minister Frances Fitzgerald Right: Rachael Hession, Skillnet/ Law Society; Tony O’Sullivan, Beauchamps. Far right: Jemimah Bailey, Mark Heslin, Jane Costello
the Parchment 63
Closing Argument Stuart Gilhooly
Stuart Gilhooly is a partner at HJ Ward & Co Solicitors and former president of the DSBA
The Changing of the Guard
magine you knew nothing about the law. This may not require too much suspension of disbelief for many of us but cheap jokes aside, how would you envision a lawyer and his practice? A Google image search produces countless pictures of books, gavels, scales of justice together with men in wigs and gowns. No surprises there. Except that it doesn’t reflect the 21st century legal professional in anything approaching an accurate manner. As this column is written, it’s just a few short weeks since we passed the marriage referendum. It felt like a game changer then for the country but in reality, all it did is illuminate the writing on the wall for old-fashioned beliefs and prejudices and announce the march of Generations X and Y out of the back offices and into power. The legal profession in Ireland is, predictably, a microcosm of this and if we open our eyes, scrunch them up and look really closely, we can see the changes in how our business is done, who does it and how we portray ourselves. The referendum is a neat example of this. Instead of finding a fence to sit on and reinforce the conservative stereotype of yesteryear, we got out and shouted for what was clearly a legal no-brainer. The front page of this very magazine was emblazoned with a rainbow flag and carried an interview with Yes Equality campaigner, Muriel Walls. The Law Society made the slightly controversial but ultimately easy decision to take a side and argue it forcefully in the name of justice. And lastly, the understated but very
effective Lawyers for Yes group made hugely meaningful contributions throughout. In so much as it’s difficult to imagine the Ireland of even 15 years ago running and passing such a vote, a legal profession taking off its conservative overcoat and rolling up its shirt sleeves to fight minority discrimination would have been unthinkable even at the turn of the millennium. The exact reasons are myriad and would require a lengthy tome to examine but essentially it comes down to a simple change of mindset and personnel. The baby boom generation has taken over and it will never be the same again. Whether it is in the big firms where most managing partners were born in the 1970s or in the smaller operations, the quill went out with the typewriter. Plain English is now a given, more emails are sent than letters and a large number of solicitors don’t ever go to court. Wigs and gavels are for Rumpole of the Bailey (if you’re Generation Y, Google it). Most solicitors now run their practices like a business. The larger firms have been selling themselves properly for years but now everyone is waking up to the new reality. Flor McCarthy’s excellent new book, The Solicitor’s Guide to Marketing and Growing a Business tells all of us, creatures great and small, how to operate a modern solicitor’s practice and maximise your return. The bad old days of sitting in your office waiting for the phone to ring because “you’re worth it” are gone – and have been replaced by straightforward business and marketing strategies.
The advent of the Legal Services Bill, which is finally upon us, promises to bring the legal profession kicking and screaming into the 21st century
Perhaps the most noticeable change, and most tell you it doesn’t make any difference, is the gradual ascent into the majority of the female solicitor. It’s been coming for a long time but now we’re here, the gap is going to keep growing. For the last 10 or 15 years the ratio of women to men qualifying has been two to one. It’s a reflection of the primacy of females in exam results but also a change in the way that legal business is done. It’s always difficult to know which came first, the chicken or the egg, but the testosterone-filled world of litigation, while remaining a huge element of the solicitor’s world, is less and less part of the staple diet. As with life in general, women often approach problems in a different way to men which will inevitably lead to a more varied range of solutions which can only benefit the way in which we are seen by an ever critical public. It will take time for our current and future clients to see the shackles gathering dust, but they will. Transparency, client care, reasonable billing and common courtesy are four simple concepts that might be considered a given in any other business but for many years were anathema to some of our predecessors. The advent of the Legal Services Bill which is finally upon us, promises to bring the legal profession kicking and screaming into the 21st century. What former Minister Shatter didn’t notice is that we’re already there. P
64 the Parchment
IF LIFE GIVES YOU LEMONS WEâ&#x20AC;&#x2122;RE HERE TO HELP 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. A confidential free service from the DSBA.
A4 Consult a collegue.indd 1