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D UB LIN SOLICITORS’ B AR ASSOCIATION MAGAZ INE | AUTUMN 2019 | ISSU E 81

COUNTING THE COSTS New Regulations on Legal Costs

EXAGGERATED AND FRAUDULENT CLAIMS PRIVACY IN THE WORKPLACE


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Autumn 2019 dsba.ie

From the Editor

W

elcome to the autumn edition of the Parchment. With the commencement of a number of sections of the Legal Services Regulation Act 2015 in early October, we focus in a number of articles on how this will impact practitioners. Section 150 now replaces what we all have known as section 68 and there is now a new legal costs regime in place. Colleagues must familiarise themselves with these new obligations and the articles in this edition from Keith Walsh, Stephen Fitzpatrick and Susan Martin should be of assistance. The new provisions place a much greater obligation on solicitors to inform their clients of legal costs that will be incurred through the course of instruction. There are serious implications for non-compliance with section 150, including the possibility of being unable to recover costs which were not included in a legal costs notice pursuant to section 150. In addition to the considerable section 150 coverage, we have articles on a huge range of legal topics including privacy in the workplace; loan

purchase disclosure; mandatory retirement; debt recovery overview; Irish Package Travel Regulations 2019 and exaggerated and fraudulent claims. Later this month, Greg Ryan steps down as President of the DSBA and Tony O’Sullivan becomes the new President. I would like to wish Greg every success for the future and congratulate him on a great year as President of this great association. The DSBA recently held its annual lunch for colleagues who have over 50 years in practice (see pages 52-53). Whilst some are retired, many of them are still practising; advising clients and being the leading solicitors that they have been for over half a century. Their sense of accomplishment and joie de vivre is an inspiration to the entire profession.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2018/2019

GREG RYAN DSBA President

TONY O’SULLIVAN DSBA Vice President

DIEGO GALLAGHER Honorary Secretary

JOSEPH O’MALLEY Treasurer

SUSAN MARTIN Programmes Director

LAURA HORAN

NIALL CAWLEY

PAUL RYAN

MATTHEW KENNY

JOAN DORAN

KILLIAN O’REILLY

RONAN McLOUGHLIN

CIARA O’KENNEDY

GERARD O’CONNELL

AVRIL MANGAN

PUBLISHED BY The Dublin Solicitors’ Bar Association, 1st Floor, 54 Dawson Street, Dublin 2.

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 Gerard O’Connell (Chair) Keith Walsh Áine Hynes Julie Doyle Kevin O’Higgins Stuart Gilhooly Joe O’Malley Killian Morris Robert Ryan COPYRIGHT The Dublin Solicitors’ Bar Association

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Autumn 2019

Contents 6

New Era for Costs

10

New Bills of Costs Obligations

Keith Walsh sets out the main changes introduced by section 150 of the Legal Services Regulation Act, 2015

Keith Walsh reviews the new obligations pursuant to Section 152 of the Legal Services Regulation Act, 2015

18

Another Bump on the Road to Mandatory Retirement David McCauley warns that a retirement age must be properly incorporated into employees’ contracts

22

Exaggerated and Fraudulent Claims – a Step in the Right Direction? Louise Smith and Kate Duffy report on some recent developments

24

Loan Purchase Disclosure Darryl Broderick and Hilda Mannix assess two recent High Court decisions

28

Privacy in the Workplace Cian Beecher and Helen Webb examine if employers can rely on personal communications to dismiss

Dublin Solicitors’ Bar Association 1st Floor, 54 Dawson Street, Dublin 2, Ireland T: 01 670 6089 E: info@dsba.ie W: www.dsba.ie

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28

Section 150 imposes much greater responsibilities on solicitors (and arristers) when providing notice of legal costs to clients page 6


Autumn 2019 dsba.ie

Contents

REGULAR FEATURES 01 04 50 52

Editor’s Note President’s Message DSBA News Photocall

18 34

Keeping People in their Homes? Jennifer Halpin looks at new considerations for courts in possession proceedings

36

Irish Package Travel Regulations 2019

38

Case Dismissed

40

Photographs and Privacy

42

Debt Recovery Stabilised?

Jessica Egan takes a whistlestop tour of the new regulations

Shane Neville and Ciara Smyth report on a recent High Court decision which rules on delay in discovery

David Kavanagh answers the question, when does an expectation of privacy arise?

24

Jason Harte analyses debt recovery litigation and enforcement trends

44

Financial Loss Claims Statute Barred John O’Riordan reviews a recent Court of Appeal decision in Cantrell & Ors v Allied Irish Banks Plc & Ors

46

Working Time - Employers’ Responsibilities Ciara O’Kennedy takes a fresh look at the Organisation of Working Time Act 1997

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Message from the President

Farewell from the DSBA President

T

he new legal year and the start of the Michaelmas term commenced on 7th October and the business that attaches to that time will have us all hustling from our o ces to the Four Courts. This year will be more interesting than others with the impending Brexit on 31st October, and who knows what will transpire from that. Our CPD programme now resumes apace after the summer break and promises to deliver the same high level of speakers and content that is a hallmark of DSBA. The CPD diary is almost full to end of December, and we’re starting to plan into 2020. Those CPDs and indeed the contributions of all of the committees are only made possible by the invaluable work put in by all our volunteers who sit on the 12 committees, and as I have done all year, I must again applaud them for their tireless work which is greatly appreciated by us all. Our DSBA Legal Services Regulation taskforce led by last year’s President, Robert Ryan, continues to make regular submissions to the Legal Services Regulatory Authority. The consultation process in relation to the education piece is almost complete, and proposals should be forthcoming in the coming months as to how the Legal Services Regulatory Authority intends on regulating the future of education in the profession. I had the pleasure of hosting the DSBA annual conference in Lyon in September with over 110 delegates attending what was a most enjoyable event. I’d like to thank our speakers: Tim Hughes of the Lyon Bar, John Barry of Interpol and our very own Niall Cawley. I’d also like to thank Collette O’Malley for her expert support and organisation of the conference. The second of our two annual golf outings was also a great success, and thanks to Eamonn Shannon for his hard work in organising the golf outings every year. We launched the updated DSBA Share Purchase Agreement precedent in September. This precedent was last updated in 2009. Special thanks to Stephen Keogh, Rachel Fox and Mark Queally of William Fry’s for their invaluable input in assisting the Commercial Law Committee in this 4 the Parchment

regard, and indeed their presentations at the seminar. The annual Golden Oldies dinner was held on 4th October. This dinner for our members who are uali ed over 50 years is greatly appreciated by them, and again thanks to aura and her sta for the e cellent organisation of that event. The Law Society elections will be upon us shortly and I would urge all members to cast their rst vote for our u lin candidates. We have a high calibre of candidates standing who I have no doubt will represent the profession to the highest standards. When I started the year, the theme of my Presidency was collegiality and I hope that we have achieved in that. Numbers attending our social events have increased, which can only be good for the profession as a whole. Further, the number of precedents published by the DSBA practitioners is increasing, and while two have been launched so far this year, there is another suite to be launched in the coming months, watch this space.

As this brings my year as President to a close, I would to thank all of those who have put in so much hard work into making the year as easy as possible for me. I would like to thank my Council and chairs of committees for their input and un agging support. I would particularly like to thank aura for managing the o ce so well, and for not being afraid to tell me when some of my ideas might have been madder than usual! Finally I would like to thank you, the members for supporting the DSBA so unreservedly and contributing to the organisation’s success. At the next AGM I will hand over the chain of o ce (having remar a ly managed not to lose it) to my ice- resident Tony O’Sullivan who I have no doubt will make his year an outstanding success, and I wish him every good fortune in that endeavour. I look forward to seeing you at the CPDs and social events over the coming months. Greg Ryan, DSBA President


Keith Walsh is a family law solicitor in Dublin and chaired the Law Society LSRA Legal Costs Working Group. He is the author of Divorce and Judicial Separation Proceedings in the Circuit Court: A Guide to Order 59 published in 2019 by Bloomsbury Professional

New Era for Costs Keith Walsh is a family law solicitor and chaired the Law Society Legal Services Regulatory Authority Legal Costs Working Group which produced the new section 150 precedents. In this article he sets out the main changes introduced on 7th October 2019 by section 150 of the Legal Services Regulation Act, 2015

S

ection 150 of the Legal Services Regulation Act, 2015 commenced on 7th October 2019 and replaces section of the olicitors ( mendment) ct, 1994. Section 150 imposes much greater responsi ilities on solicitors (and arristers) when providing notice of legal costs to clients and a failure to comply with this section will result in the Legal osts d udicator (formerly nown as the Ta ing aster) not con rming the charge unless they are of the opinion that to disallow the costs in question would create an in ustice etween the parties (section 5 ( )). Section 68 sets out that on the taking of instructions to provide legal services to a client, or as soon as is practicable thereafter, a solicitor shall provide the client with particulars in writing of either (a) the actual charges, or ( ) where this was not in the circumstances possible or practicable, an estimate (as near as may e) of the charges, or (c) where the provision of particulars of the actual charges or an estimate of such charges is not in the circumstances possible or practicable, the basis on which the charges are to e made, y that solicitor or his rm for the provision of such legal services. In addition where those legal services involve contentious business, the solicitor must set out in writing the circumstances in which the client may be required to pay costs to any other party or parties and the circumstances if any, in which the client’s liability to meet the charges which will be made by the solicitor of that client for those services will not be fully discharged by the amount, if any of the costs recovered in the contentious business from any other party or parties (or any insurers of such party or parties).

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ection 50 (2) states that on receiving instructions from a client, a legal practitioner shall provide the client with a notice which shall: (a) disclose the legal costs that will e incurred in relation to the matter concerned, or ( ) if it is not reasona ly practica le for the notice to disclose the legal costs at that time, set out the basis on which the legal costs are to be calculated.

New Obligations

( ) Must provide actual legal costs as soon as may be after it becomes practicable to do so While section 50(2) is similar to section , the increased obligation is contained in section 50(3) which states that where it is not reasona ly practicable to disclose the legal costs then the legal practitioner shall, as soon as may be after it becomes practicable to do so, provide to the client a notice containing the information speci ed in su section (2)(a) i.e. the actual legal costs. (2) Clear language The section 50 notice must e written in clear language that is likely to be easily understood by the client (section 50( )). (3) Contents of the section 150 notice (a) su ect to sectio 50 (2)( ), the ill of costs must specify the amount of legal costs: (i) certi ed y the legal practitioner as having been incurred as at the date on which the notice is provided, (ii) certi ed y the legal practitioner to e of a ed nature or otherwise certain to e incurred (or if it would e impractica le for


Autumn 2019 dsba.ie

Legal Costs

the legal practitioner to so certify, the basis on which they are to e charged), and (iii) insofar as is practica le, certi ed y the legal practitioner to be likely to be incurred; ( ) specify the amount of value-added ta to e charged (c) The notice must set out the asis on which the legal costs were or are to e calculated, e plained by reference to the matters set out in paragraph 2 of Schedule 1 of the Act; In determining whether the costs are reasonable in amount a Legal Costs Adjudicator shall consider each of the following matters, where applicable: (a) the complexity and novelty of the issues involved in the legal work; (b) the skill or specialised knowledge relevant to the matter which the legal practitioner has applied to the matter; (c) the time and labour that the legal practitioner has reasonably expended on the matter; (d) the urgency attached to the matter by the client and whether this requires or required the legal practitioner to give priority to that matter over other matters; (e) the place and circumstances in which the matter was transacted; (f) the number, importance and complexity of the documents that the legal practitioner was required to draft, prepare or examine; (g) where money, property or an interest in property is involved, the amount of the money, or the value of the property or the interest in the property concerned; (h) whether or not there is an agreement to limit the liability of the legal practitioner pursuant to section 48;

(i) whether or not the legal practitioner necessarily undertook research or investigative work and, if so, the timescale within which such work was required to be completed; (j) the use and costs of expert witnesses or other expertise engaged by the legal practitioner and whether such costs were necessary and reasonable. (d) The notice must contain a statement of the legal practitioner’s obligation to provide the client with a new notice where the legal practitioner becomes aware of any factor that would make the legal costs likely to be incurred in a matter signi cantly greater than those disclosed or indicated in a notice relating to that matter provided under this section. This new notice must be provided as soon as may be after the legal practitioner becomes aware of that factor. (e) if the matter which is the su ect of the notice involves or is likely to involve litigation, then the notice must provide: (i) an outline of the wor to e done in respect of each stage of the litigation process and the costs or likely costs or basis of costs involved in respect of each such stage, including the likelihood of engaging a practising arrister, e pert witnesses or providers of other services, (ii) a statement of the legal practitioner s o ligation under su section ( ), (iii) information as to the li ely legal and nancial conse uences of the client s withdrawal from the litigation and its

Section 150 imposes much greater responsibilities on solicitors (and arristers) when providing notice of legal costs to clients

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The egal osts Adjudicator does not have authority to con rm a legal charge unless it is included in a legal costs notice pursuant to section 150

discontinuance, and (iv) information as to the circumstances in which the client would be likely to be required to pay the costs of one or more other parties to the litigation, and information as to the circumstances in which it would be likely that the costs of the legal practitioner would not be fully recovered from other parties to the litigation. (f) The notice must specify a period which shall be not longer than 10 working days within which legal services must not be provided in relation to the matter concerned unless the client concerned con rms that he or she wishes to instruct the legal practitioner to continue to provide legal services in connection with the matter concerned, or in the professional opinion of the legal practitioner, not to provide those legal services would constitute a contravention of a statutory requirement or the rules of court or would prejudice the rights of the client in a manner that could not later be remedied, or a court orders the legal practitioner to provide legal services to the client, or where the matter involves litigation, a notice of trial has been served in relation to the matter or a date has een ed for the hearing of the matter concerned.

Section 150 Notices – the Basics in 10 Points . The section 50 notice will e much longer and more detailed. 2. Greater obligations on solicitors to inform their clients of legal costs that will be incurred and also of any costs incurred to the date of the section 150 notice. 3. ligation to update the section 50 notice as soon as may e after the solicitor becomes aware of a factor which would be likely to make the legal costs incurred signi cantly greater than those indicated in the section 150 notice. . ery serious implications for non-compliance with section 50 the egal osts d udicator does not have authority to con rm a legal charge unless it is included in a legal costs notice pursuant to section 150 or in a legal costs agreement unless the Legal Costs Adjudicator believes that to disallow the matter would create an injustice between the parties (section 5 ( ). 5. Any legal costs agreements must comply with the provisions of section 50 or the non-compliance issues a ove may arise. . very section 50 notice (not ust the rst) must contain a period of time during which the legal practitioner cannot provide legal services. The ma imum period is 0 wor ing days. There is no minimum period. This suspension period can e ro en y either a. The client con rming they wish to proceed or . The time running out as speci ed. see e ceptions in article 7. Section 150 notices in litigation cases are more onerous than in other matters see article . egal practitioner is re uired to respond to re uest for clari cation from client in relation to the section 150 notice ‘as soon as is reasonably practicable’ after receiving same. 9. Section 150 applies to both practising solicitors and practising barristers. 0. The phrase reasona ly practica le recurs in the legislation and should e used in the section 50 notices. The phrase is not de ned in the ct.

8 the Parchment

( ) Must clarify notices as soon as is reasonably practicable The legal practitioner shall provide his or her client with clari cation in relation to a notice, as soon as is reasonably practicable after having been requested to do so by the client. (5) Additional obligations in litigation cases Where a matter which is the subject of a notice under this section involves or is likely to involve litigation, the legal practitioner shall not in relation to that matter, engage a practising arrister, e pert witness or provider of any other service without rst, to the e tent practica le (a) ascertaining the li ely cost or asis of cost of engaging the person, ( ) providing the client with the information referred to in paragraph (a), and (c) having complied with paragraph ( ), satisfying himself or herself of the client’s approval (whether e press or implied) of the engaging of the person. ection 50( ) ( ) Obligations and duties of barristers to solicitors under section 150 Where a practising solicitor, having received instructions from a client in relation to a matter, proceeds to instruct a practising arrister in relation to that matter (a) an obligation on the barrister under section 50 to provide a notice shall e ful lled where the barrister provides the notice concerned to the solicitor ( ) a duty owed y the arrister under section 50 ( ) see a ove , 50 ( ) the same prohi ition on provision of legal services as set out above in para 2(f) with the same e ceptions or ( ) clari cations in relation to notice on legal to his or her client shall be construed as a duty owed by the barrister to the solicitor, and (c) the solicitor concerned shall (i) where he or she considers it appropriate, or where requested to do so by the client, request the arrister to provide clari cation in relation to a notice provided y the arrister, and (ii) immediately on receipt of a notice referred to in paragraph (a) or the clari cation referred to in su paragraph (i), provide that notice or clari cation to the client. Please note that guidance and precedents are available on the Law Society website.

Other Changes in Brief Legal costs agreements provided they contain all the particulars re uired pursuant to section 50( ) of the Act may be used instead of the section 150 notice but they too must be updated when re uired y the act. (see section 5 ). A new Order 99 of the Rules of the Superior ourts is e pected to e introduced to re ect the changes in the Act which will contain a new format of the Bill of Costs to be drawn for ta ation. P


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Keith Walsh is a family law solicitor in Dublin and chaired the Law Society LSRA Legal Costs Working Group. He is the author of Divorce and Judicial Separation Proceedings in the Circuit Court: A Guide to Order 59 published in 2019 by Bloomsbury Professional

New ‘Bills of Costs’ Obligations Keith Walsh is a family law solicitor and chaired the Law Society Legal Services Regulatory Authority Legal Costs Working Group which produced the new section 150 precedents. In this article he sets out the new obligations pursuant to Section 152 of the Legal Services Regulation Act, 2015 in relation to bills of costs

1. Definitions (Section 138)

“bill of costs” means a document setting out the amount of legal costs chargeable to a client in respect of legal services provided to him or her, prepared by a legal practitioner in accordance with section 152 or, where applica le, section 5 ( )

(a) ( )

(c) (d) (e)

“legal costs” means fees, charges, disbursements and other costs incurred or charged in relation to contentious or non-contentious usiness, and includes the costs of or arising out of any cause or matter in any court, any costs which are the su ect of an order made by an arbitral tribunal in accordance with section 2 ( ) of the r itration ct 20 0 for the ad udication of the costs of the ar itration y a egal osts d udicator, the costs of a receiver appointed in any cause or matter, on the application of the receiver or of any party to the cause or matter, costs that arise from an in uiry, investigation or other proceeding conducted under an enactment, and the cost of registering udgments as mortgages, of obtaining grants of probate and of letters of administration, of satisfying udgments, and any other costs usually ad udicated e parte “disbursement” means a fee or cost (whether or not ed y or under a statute or rules of court) paya le to a third party that is necessarily and reasonably incurred by a legal practitioner for the purposes of the provision by that legal practitioner of legal services to a client, and includes fees or costs payable by the legal practitioner to a arrister or an e pert witness, but does not include general costs

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incurred in the course of the legal practitioner’s practice as a legal practitioner

Definition (Section 2):

“legal services” means legal services provided by a person, whether as a solicitor or as a barrister.

2. When should the bill of costs section 152(1) be delivered? A legal practitioner shall, as soon as is practicable after concluding the provision of legal services in relation to a legal matter for a client, prepare and sign a bill of costs, which shall contain the particulars speci ed in this section and shall e in such form (if any) as may e speci ed in rules of court.

3. Mandatory requirements for bill of costs section 152(2) (a) a summary of legal services provided to the client in connection with the matter concerned ( ) an itemised statement of the amounts in respect of the legal costs in connection with the legal services (c) T num er and T chargea le (d) where time is a factor in the calculation of the legal costs concerned, the time spent in dealing with the matter (e) the amount where nown to the legal practitioner, of any damages or other monies that are recovered by or payable to, the client and that arose from the matter in respect of which the legal services were provided (f) the amount of any legal costs recovered y or payable to the legal practitioner concerned on behalf of the client, including costs recovered from another party, or an insurer on behalf of another party, to the matter concerned.


Autumn 2019 dsba.ie

Legal Costs

ote failure to comply with re uirements of section 152 will result in the time limits set out below not being triggered, the bill of costs may not be ad udicated upon.

4. Additional mandatory details to be provided in relation to disputing the bill of costs section 152(3)

(a) ( )

(c)

(d) (e)

(f)

The legal practitioner must provide to the client along with the ill of costs, an e planation in writing of the procedure available to the client should the client wish to dispute any aspect of the bill of costs, which shall contain the following information that the client may discuss the matter with the legal practitioner that the client is o liged under section 53( ) to communicate to the legal practitioner the e istence of a dispute on any aspect of the ill of costs, and the date and means by which this is to e communicated that, where a dispute is communicated under section 53( ), the legal practitioner is o liged under section 53 to attempt to resolve the dispute y informal means, including mediation that the client may have the dispute referred to mediation, including a reference to the procedures availa le for such mediation that the client may apply for ad udication of legal costs including the contact information for the o ce and the potential cost to the client of see ing an ad udication of a ill of costs and the date on which the legal practitioner may, su ect to section 53, ma e an application under section 5 (5) for an ad udication in the event that the bill of costs or any part thereof remains unpaid.

5. Interaction between legal costs

agreement and bill of costs section 152(7) If a legal costs agreement has been made under section 151 by a legal practitioner and his or her client, that agreement shall e set out in, or anne ed to, the bill of costs relating to the matter to which the agreement relates. ection 52(5). Where this legal costs agreement concerns all of the legal costs that are payable by the client to the legal practitioner for legal services provided in relation to the matter concerned, an invoice prepared by the legal practitioner containing a summary of the costs and outlays pursuant to the agreement, together with a copy of the agreement, shall constitute a bill of costs of the purposes of this section. ection 52( ). Where the legal costs agreement concerns a part of the legal costs that are payable by the client to the legal practitioner for legal services provided in relation to the matter concerned, a summary prepared by the legal practitioner of the costs and outlays pursuant to the agreement shall, as respects that part of the legal costs, satisfy the re uirements for a ill of costs as set out in su paragraphs (a), ( ) and (d) of paragraph 2 a ove.

6. Obligations of solicitors and barristers in relation to bills of costs section 152(8)

Where a practising solicitor, having received instructions from a client in relation to a matter, proceeds to instruct a practising barrister in relation to that matter, and the barrister has concluded providing legal services in relation to that matter (a) an o ligation on the arrister under this section to provide a ill of costs shall e ful lled where the barrister provides the bill of costs concerned to the solicitor, ( ) the solicitor concerned shall immediately on receipt of a ill of costs referred to in paragraph (a), provide that bill of costs to the client.

The legal practitioner must provide to the client, along with the bill of costs, an e planation in writing of the procedure available to the client should the client wish to dispute any aspect of the bill of costs

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5

Time limits re: bill of costs

Where a client disputes any aspect of a bill of costs, he or she shall, within 21 days of the bill of costs being provided to him or her under section 152

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i e li its for clients to r ise issues ne obligations on legal practitioners to resolve disputes in relation to bills of costs and time limits in relation to having bills of costs d udic ted ursu nt to section 15 ote the follo in is ll sed on the assumption that the legal practitioner provides ill of costs hich co lies ith section 15 1

i e li it no 1 client ust r ise issue ithin 1 d s in ritin Where a client disputes any aspect of a bill of costs, he or she shall, within 21 days of the bill of costs being provided to him or her under section 152, send the legal practitioner concerned a statement in writing setting out the nature of the dispute. e l r ctitioner ust t e ll ro ri te and reasonable steps to resolve dispute Where a legal practitioner receives a statement in accordance with su section ( ), he or she shall, before making an application under section 5 (5) to have the ill of costs ad udicated y the egal osts d udicator, ta e all appropriate and reasonable steps to attempt to resolve the dispute by informal means which may include, where appropriate and with the consent of the client, mediation. e l r ctitioner or client ust infor other rt in ritin hen resolution attempt has failed Where the legal practitioner or the client, as the case may be, having made reasonable attempts to resolve the dispute in accordance with subsection (2), is of the opinion that the attempt has failed, he or she shall inform the other party in writing of that opinion. i e li it no 0d itin ti e efore le l r ctitioner c n l to h e ill of costs d udic ted et een solicitor nd

client ut e rid ed the i h Court or e l Costs d udic tor er section 15 a. If no issue raised by client 30 days after the ill of costs is provided if the bill of costs or part thereof remains unpaid. ection 5 (5) b. If issue raised by client 30 days after the ill of costs is provided if the bill of costs or part thereof remains unpaid ut the period eginning on the date on which the client sends the legal practitioner a statement in writing raising the issue and ending on the date on which the legal practitioner or the client, as the case may be, informs the other party of his or her opinion that the resolution attempt has failed shall e disregarded. ection 53( ). i e li it no 1 onth ti e li it ithin hich le l r ctitioner l for adjudication 12 month time limit from date of delivery of bill of costs within which legal practitioner may apply to hief egal osts d udicator to have ill of costs assessed. ection 5 (5)(c). But the period beginning on the date on which the client sends the legal practitioner a statement in writing raising the issue and ending on the date on which the legal practitioner or the client, as the case may be, informs the other party of his or her opinion that the resolution attempt has failed shall e disregarded. ection 53( ). i e li it no or onth ti e li it ithin hich client l for adjudication month time limit from date of delivery of bill of costs within which a client may apply to the Chief egal osts d udicator to have ill of costs assessed ection 5 ( ) (c) or within months of the date of payment of the bill of costs which rst occurs provided the bill of costs is in a form and manner consistent with a. the Act b. any rules of court relating to the preparation and provision of bills of costs by a legal practitioner to a client. But the period beginning on the date on which the client sends the legal practitioner a statement in writing raising the issue and ending on the date on which the legal practitioner or the client, as the case may be, informs the other party of his or her opinion that the resolution attempt has failed shall e disregarded. ection 53( ). i e li it no 5 o ti e li it no d udic tion reed reduction in ill of costs nd ent of reduced ount prevents subsequent adjudication of bill of costs either client or le l r ctitioner ection 5 ( ). Failure by a client to pay a bill of costs to a legal practitioner within the time period referred to in section 5 (5) shall not e construed as a formal communication of the e istence of a dispute y the client to the legal practitioner (see section 53(5)). P


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Costs Minefield or Costs Clarity? There are signi cant conse uences to the solicitor for failing to adhere to the provisions of ection 50 of the egal ervices egulation ct 20 5 ( the 20 5 ct ). usan artin provides a helpful insight

E

very solicitor is familiar with the provisions of ection ( ) of the ct wherein our o ligation was to provide the client with an estimate of legal charges as soon as practica le after ta ing instructions. ection 50 provides that on receiving instructions from a client the legal practitioner will. (a) disclose the legal costs that will e incurred in relation to the matter concerned, or ( ) if it is not reasona ly practica le for the notice to disclose the legal costs at that time, set out the

14 the Parchment

asis on which the legal costs are to e calculated. This is not a restatement of the law in ection ( ) of the ct, as ection 50(3) of the 20 5 ct provides that if a precise gure cannot e furnished in accordance with ection 50 (2) of the 20 5 ct, then a notice is re uired pursuant to ection 50( ) of the 20 5 ct. u sections ( ) to ( ) are worth reading very carefully and noting as they contain onerous o ligations for the practitioner. set out the re uirements in the ta le on the right which may assist as a chec list in preparing the notice.


Autumn 2019 dsba.ie Susan Martin is principal of Martin Solicitors. She is a programmes director and council member of the DSBA

Section

Costs

Item to be included

Comment

50 ( )(a)(i)

What costs have een incurred to date

to the date of writing the notice

50 ( )(a)(ii)

whether ed or asis on which to e charged

ee para 2 chedule of 20 5 ct

50 ( )(a)(iii)

ow much future charges will e

50 ( )( ) 50 ( ) (c) 50 ( ) (e) (i) for litigation matters

T

What the T on all of the charges will e outline to date and what it will e in the future

asis for calculation

ee para

chedule of 20 5 ct

n outline of each stage of litigation process and costs of each part

50 ( ) (e) (i)

f arrister or other e pert witness re uired

50 ( ) (e) (ii)

f arrister or other e pert witness is re uired

50 ( ) (e) (iii)

nformation as to the li ely nancial legal conse uences if client wishes to withdraw the case

lient needs to e informed a out the conse uences of lodging a notice of discontinuance or the costs of lodging such notice or the costs of negotiating an agreed withdrawal

50 ( ) (e) (iv)

nformation on the circumstances in which client would have to pay the costs of the other party(s) in the litigation and if the costs could not e recovered from the client

nform the client how costs are collected y the other party and in what circumstances e.g., y agreement through settlement, if the case is lost or through lodging a notice of discontinuance.

50 ( ) (f)

The time the client has to revert to you to con rm agreement

ee ection 50 ( ) and ( ) of the 20 5 ct cannot e more than 0 days. This provides a hiatus in giving legal services (i.e. you do not do any further wor ) until such time as the client has given you approval for the costs outlined in the notice. owever, if there is a statutory o ligation to carry out wor (such as contained in the rules of court), a notice of trial has een issued or the client would su er a greater pre udice then you don t cease wor ut eep going. n a new departure for the legislation the court can direct the practitioner to provide the legal services notwithstanding the provisions of ection 50 (see ection 50 ( ) ( ) of the 20 5 ct. This period of suspension comes into force each time a new notice is issued.

50 ( 0) (c)(ii)

rovide a copy of the arrister s costs notice to the client

This section transfers the duty from the arrister to the solicitor in respect of the provision of the estimate of fees. The solicitor in turn must furnish it to the client and see clari cation in respect of the estimate if re uired or at the re uest of the client.

Consequences for non-compliance with Section 150 ection 50 of the 20 5 ct places an o ligation on the solicitor to notify the client in advance of each and every part of the possi le charges which can e incurred in respect of the legal services they provide. The conse uences of failing to adhere to ection 50 include (a) tems not included in the ection 50 notice will not ta ection 5 ( ) of 20 5 ct ( ) ailure to provide the notice is misconduct

ou will need to o tain details from your counsel, engineer and doctors in advance as to what the possi le charges will e and these need to e noti ed to the client in advance of engaging these e perts. ee comment a ove client approval needs to e o tained in advance see ection 50 ( ) (c)

n instance where they might not e recovered from the client would e, for e ample in an employment or T matter.

ection 50 ( ) (m) of the 20 5 ct (c) ee ing e cessive costs is misconduct 50( )(l) of the 20 5 ct .

ection

n conclusion, solicitors are well advised to em race the new section and regulation and put some time into preparing for its implementation. While the conditions are onerous, it will have the ene t of forcing the solicitor and client to confront the reality of legal costs and ensure that there are no nasty surprises in store at the conclusion of the case. P the Parchment 15


New Section 150 Frequently Asked Questions Chair of the Law Society Legal Services Regulatory Authority Legal Costs Working Group Keith Walsh met with legal cost accountant Stephen Fitzpatrick of Peter Fitzpatrick & Co Legal Cost Accountants for a questions and answers session on the new costs regime

Question 1: What will happen in respect of section 68 (6). Is there a provision under the new section 150 similar to section 68(6) in this regard? Yes it is now section 152. As soon as possible after conclusion of services a bill for services must be provided. That nal ill sets out a summary of the services, the amount sought on an itemised basis, the damages, the party and party costs obtained. It also requires a written explanation of how to settle the bill and how to dispute it and the right to mediation. One nota le di erence is that it must include the arristers bill of costs also.

Question 2: What will happen in respect of de minimis cases i.e. where you are given instructions the day before the District Court or on the day of court or you need to immediately apply for an adjournment or emergency barring order and cannot give the section 150 cooling off period to the client? ection 50( ) provides that the legal practitioner may provide the legal services notwithstanding the suspension of services cooling o period if (a) in the professional opinion of the legal practitioner, not to provide those legal services would constitute a contravention of a statutory requirement or the rules of court or would prejudice the rights of the client in a manner that could not later be remedied, ( ) a court orders the legal practitioner to provide legal services to the client, or (c) where the matter involves litigation, a notice of trial has been served in relation to the matter or a 16 the Parchment

date has een ed for the hearing of the matter concerned. There are node minimis provisions in the Act in this regard.

Question 3: What proof of delivery of section 150 to the client should you obtain? What is likely to be sought by insurance companies on taxation of party and party costs? Normal standards should apply to delivered S150 documents. f a notice is given on a le, an insurance company would want to have good grounds for challenging it. Prima facie they should not be allowed loo ehind it without su cient cause. est practice for the rst notice is to have the client sign it and return it. Most practices do this.

Question 4: Is there a cooling off period required for section 150 and if so, is there a waiver on the cooling off period, particularly in respect of de minimis cases? Are you required by section 150 to inform the client if you need an expert witness (such as last minute advise and proofs from counsel i.e. an expert from Met Eireann of the costs)? i. The cooling o period refers to the provision of legal services rather than the provision of the section 50 notice. The cooling o period must e contained in the section 150 notice. The client can con rm they wish to instruct to legal practitioner within the cooling o period and this will end it there and then.


Autumn 2019 dsba.ie Keith Walsh is a family law solicitor and chaired the Law Society LSRA Legal Costs Working Group. Stephen Fitzpatrick is principal of Peter Fitzpatrick & Co. Legal Cost Accountants. He is a board member of the LSRA

ii. Regarding the expert witness in my opinion it must e noti ed to the client ecause section 50 (5) says where it involves litigation there is a general prohibition on engaging a barrister or witness without ascertaining the cost and informing the client and obtaining the client’s approval. This is impractical close to trial or during trial and some leeway or allowance will have to be built in somewhere. This must be considered in light of the adjudicator’s obligations not to allow a cost unless noti ed and approved ( ection 5 ( )). egal osts d udicator shall not con rm a charge in respect of a matter or item if the matter or item is not included in a notice referred to in section 150 or, as the case may be, is not the subject of an agreement referred to in section 151, unless the Legal Costs Adjudicator is of the opinion that to disallow the matter or item would create an injustice between the parties”. The adjudicator can allow a cost but only if it would be an injustice to disallow it. Perhaps this example falls within that discretion. It potentially adds unnecessary layers of work but one is running the gauntlet without a notice.

Question 5: If you have lay witnesses you require to attend court do you have to notify the client about viaticum paid? The Act has a prohibition on incurring an expert or barrister but not a lay witness. The cost perhaps should be advised in an updated notice at some point but to my mind does not have to be approved prior to incurring this. The same practical approach really should apply to stamp duties, etc. Prior approval is not required but best practice is to have them in a notice somewhere.

Question 6: In circumstances where a file is current after the commencement of section 150 and section 68 has already been given previously, does this current file come under the new section 150 regime or does it remain under the old section 68 regime – i.e. does section 150 only apply to cases where no section 68 has been given and/or new cases into the future? i. The transitional provisions cover this. ection 5. ( ) here, before the day on which this subsection comes into operation, a matter has been referred for taxation and a hearing has taken place on the matter, whether before a taxing master or a county registrar exercising the powers of a taxing master, the matter shall be dealt with in accordance with the applicable law as it stood before that day. here, before the day on which this subsection comes into operation, a matter has been referred for taxation but a hearing has not yet taken place on the matter, the matter shall be dealt with as though the referral were an application for adjudication of legal costs under section 4 made on the day on which the matter was referred for taxation . ii. Section 150 obligations appear to become operative once the Act commences. All costs from that point must be compliant. All costs to be incurred and likely to be at that stage have to be noti ed from then on ecause 50 says that once practitioner is aware of any signi cant change a new notice must be given. A practical approach by Chief Legal Costs Adjudicator is required. P

Costs

The nal ill sets out a summary of the services, the amount sought on an itemised basis, the damages, the party and party costs obtained

the Parchment 17


Another Bump on the Road to Mandatory Retirement Age discrimination claims arising from mandatory retirement have increased exponentially in recent years and this is likely to continue to be an area of interest for employers and employees alike. David McCauley warns that organisations seeking to maintain compulsory retirement ages must ensure that a retirement age is properly incorporated into employees’ contractual terms and is capa le of o ective usti cation

A

ge discrimination claims arising from mandatory retirement have increased exponentially in recent years and this area is likely to continue to be highly litigated before the WRC, the Labour Court and the superior courts. Organisations seeking to uphold compulsory retirement ages must ensure that a retirement age is properly incorporated into employees’ contractual terms and is capable of objective justi cation . A recent case before the Labour Court is a stark reminder that, in the absence of a contractual basis for a retirement age, employees can receive not only compensation for age discrimination but orders of reinstatement or re-engagement can also e made, which can wreak havoc for employers.

Background Details n ongford ounty ouncil v- ichael eilon ( 50), the complainant had een employed by Longford County Council as a lorry driver since 0 and claimed that he was forced to retire when he reached the age of 66. In proceedings for unfair dismissal he maintained that the customary retirement age for lorry drivers to retire from the respondent was 72 years of age. The Labour Court in its determination noted that it was signi cant that it had not been 18 the Parchment

furnished with any contract of employment specifying a mandatory retirement age for the employee, nor any collective agreement or pension scheme which substantiated the employer’s position that 66 years of age is the normal retirement age for lorry drivers. This was especially so as the employer’s own policy on retirement provided that employees’ retirement ages were dependent on his her relevant contract of employment with due consideration being given to the rules of the superannuation scheme to which he she belongs . The a our ourt was also in uenced y the information supplied to the employee at a meeting in 200 when the employer s nance o cer was alleged to have orally advised the employee and others that they could work until the age of . The court was also supplied with details of a number of employees in similar circumstances to the employee who had retired past the age of 66 from the employer which again, it considered signi cant . For these reasons, the court determined that Longford County Council had not established that a normal retirement age existed of which the employee was or ought to have been aware. igni cantly, the court in ordering redress was mindful of the serious e orts made y the employee since his dismissal to secure alternative employment and reinstated him to his former position until he reached the age of 0.


Autumn 2019 dsba.ie David McCauley is an associate in the employment law department at McCann Fitzgerald

Employment Law

General Principles n many cases, as in eilon, employers see ing to defend mandatory retirement ages have failed to pass the initial hurdle of proving that a retirement age existed in the organisation as a matter of fact. Where the age is not incorporated into employees’ employment contracts, it can be established by showing that a custom and practice exists where employees in the organisation routinely retire at a certain age. However, this is a complicated task and such an argument is likely to be undermined by an employee’s claim that they were not aware of such a retirement age or by evidence that other employees worked beyond that retirement age. It is clear that the mere e istence of a policy (without evidence that it is consistently applied) does not allow an employer to unilaterally terminate employment on the grounds of age. Elsewhere, reliance has been placed on the rules of occupational pension schemes to establish a mandatory retirement age, albeit this has been resisted where the scheme refers only to a normal retirement age, which is distinct from a compulsory retirement age and refers only to the age at which pension ene ts can e ta en. Even where a retirement age can be shown to e ist, the age must then e o ectively usti a le if it is to be enforced, usually by reference to social policy o ectives such as inter-generational fairness. Employers have also sought to defend retirement ages on the basis that they limit the need to expel older wor ers on the grounds of incapacity or underperformance and as such, preserve the dignity of older workers. Whether this line of argument would nd favour with an ad udicator is li ely to depend on the industry in question and might more credibly be argued to apply to safety critical roles where the health and safety of employees and the public generally are active considerations.

Concluding Remarks The recent decision in Longford County Council v- eilon is particularly nota le as it resulted in an award of reinstatement for the employee, such awards are especially rare in cases of this nature. While the Labour Court determination does not refer to any position taken by the employer concerning redress, it is likely that such an award would pose signi cant practical pro lems for an employer. ot only would the reinstatement of the employee entirely undermine an organisation’s retirement age, but the organisation may then also struggle to replicate pre-retirement employment ene ts to those over the retirement age, especially those which involve insured arrangements. This issue would also arise where injunctive relief is obtained to restrain the termination of employment on the grounds of reaching a purported retirement age, as ordered by the High Court in uigley v 4. Other recent cases including alerie ox v ( ) have highlighted that where reinstatement is not ordered, or indeed sought, signi cant awards of compensation for age discrimination can be made to disgruntled employees in cases concerning mandatory retirement. mployers should therefore e con dent of the

e istence of and usti cation for any retirement age before seeking to rely on it. Best practice now demands that employers adopt clear policies concerning retirement which adhere to the recently adopted ode of ractice on onger Wor ing and are communicated clearly to all employees. The code which is likely to become increasingly in uential in these cases, re uires employers to actively consider any request from employees to work beyond the retirement age and also provides inter alia, that employees should e noti ed well in advance of the intended retirement date. Employing retired employees on ed-term contracts eyond their retirement age should rmly e the e ception rather than the rule as overreliance on ed-term arrangements can dilute the usti cation for such retirement ages in the rst instance. In the longer term employees are living longer and are expected, if not required by economic necessity, to work longer. The political impetus for reform was most recently evident in the Government’s oadmap for ensions eform in which it committed to facilitate older people in the workplace beyond the traditional retirement age. This is motivated by a desire to empower older people, to optimise their nancial readiness for retirement and to sustain the viability of the wider pension system. With this in mind and given the continued impetus for reform, employers should be aware that the scope to sustain a compulsory retirement age is likely to narrow. P

Best practice now requires that employers adopt clear policies concerning retirement which adhere to the recently adopted “code of practice on longer wor ing

the Parchment 19


Patrick Murphy is an associate at William Fry

Litigation

Participants Accept Inherent Risks of Fox Hunting Patrick Murphy reviews a recent High Court judgment which demonstrated that the high threshold required to prove negligence or reasona le foreseea ility in reland remains rmly intact in relation to participation in sporting activities

With regard to the landowner, it was accepted that a general rule exists in fox hunting that the members waive all claims against landowners for injuries to themselves or their horses

T

he case arose as a result of severe back in uries sustained y the plainti arising from a fall from a horse during a fox hunt in Ballygeehan, Co Laois. The accident occurred on a jump over a tree obstacle when the plainti s horse ecame caught in some brambles, causing the horse to fall on top of the plainti . The plainti s claim was led against oth the hunting clu and the landowner. The plainti pleaded that the defendants did not take reasonable care for her safety, failed to take any adequate precautions in terms of safety and caused or permitted a danger to exist. The defendants contended that any act or omission on the part of the defendants was not su ciently pro imate to the alleged acts or omissions. In addition, they contended that the eld master of the hunt had inspected the o stacle, instructed the eld not to ump it and led them away from it. The plainti then proceeded to attempt to jump the obstacle of her own volition. The plainti s core argument centred on her claim that she should have been advised by the hunting clu not to ta e the ump and that more e ort should have been made to pass the information

back through the group to ensure that the jump was signalled as hazardous.

Voluntary participation in sport and inherent risks O’Hanlon J referred to the fact that voluntary participation in sport brings with it an acceptance of the inherent risks involved. Express reference was made to the Australian Supreme Court case of Roote v Sheldon which held that although there is an inherent risk via participation “this does not eliminate all duty of care of one participant to the other”. It had to be determined, therefore, whether the eld master had discharged his duty of care to a reasonable standard. The court held that the navigation of an unpredictable terrain expanding between 30 and 35 acres brought with it an inherent risk of falling that could not be denied. The court noted that the warning of the eld master, to turn away from the tree o stacle, was properly communicated, that it was obviously given to a considerable number of people and that only three of the hunt group of 40 to 50 riders, attempted to jump the particular obstacle. With regard to the landowner, it was accepted that a general rule exists in fox hunting that the members waive all claims against landowners for injuries to themselves or their horses. The landowner’s only involvement in this case was his acceptance of a call from the master of the hunt and subsequent permission for the hunt to travel across his land and as such he was held to have no liability.

Conclusion The court ultimately held that the eld master followed the rules and discharged a reasonable duty of care to the plainti . The court further held that the plainti voluntarily assumed the ris to her own detriment. The high bar required to prove negligence or reasonable foreseeability in a sports injury claim had not been reached and the court dismissed the plainti s claim. n this case the rules and procedures of the sport were followed and other sporting bodies should take note that this will be crucial to a negligence action for such an injury. P 20 the Parchment


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Exaggerated and Fraudulent Claims – a Step in the Right Direction? ecent media coverage of personal in ury litigation and the noc -on e ect of awards on premium holders has yet again highlighted the need for change and reform in our courts in both the determination of wrongdoing and the awards ultimately handed down. ouise mith and ate u y report on some recent developments

T

he recent case of O’Connell v Martin; Ali v Martin has marked a step in the right direction by the courts in this regard by illustrating the signi cant and in uential role of medical experts in personal injury proceedings and reiterating the longstanding principles to be considered in assessing fair and appropriate awards. Twomey delivered judgment on 10 May 2019 dismissing one fraudulent and one exaggerated personal injury claim, oth arising out of a minimal impact incident etween two cars.

The Role of Medical Experts The claims were undermined y a common factor the referral to consultants for a medical/psychological e amination of the alleged in uries of each plainti were y the solicitor and not, as is usual practice, y a . The court concluded that there was no medical need for the referral, only a legal need to support a claim for damages. To compound the court s suspicions, oth plainti s had attended their GPs some days after the alleged accident but prior to the referral, and neither mentioned anything about the back and neck pain they later alleged was as a result of the impact. s onnell did not inform the of her attri ution of ac pain to the impact until nine visits later. The onnell case, the dismissal of which supports the defendant s claim that the plainti had not even been in the car at the time of impact, highlights the 22 the Parchment

need for professionals to e wary of the possi ility of their services eing used to facilitate fraudulent claims. The court noted that it would e good practice in order to avoid eing misled that where medical reports are eing relied upon y plainti s, the court should be advised if they came into existence for legal rather than medical reasons. This could then in uence the court s determination of whether the claims were fraudulent or e aggerated. The court also noted it is not good practice therefore, for solicitors to refer clients to medical specialists. n fact, the ma ing of such a referral y a person with no medical e pertise, and duly accepted by the consultant, risks devaluing personal injury litigation for those who are genuinely in ured and deserving of compensation. The court considered the special position of medical professionals as e pert witnesses in the rish legal system. The privileged positions they hold in eing a le to e press views rather than mere factual o servations, is potentially open to a use, allowing the e pert to e press a view corresponding all too favoura ly with the interests of the party who retained their services. The reports in uestion in the cases at hand for example, provided subjective evidence from the plainti s regarding the e tent of their pain. There was no dispute etween the parties that r li was in the car at the time of the impact. owever, he gave evidence that s onnell was in the car at the time. aving dismissed s onnell s


Autumn 2019 dsba.ie Louise Smith is a partner at Ronan Daly Jermyn. Kate Duffy is a trainee solicitor at Ronan Daly Jermyn

claim on the asis that the court elieved she was not involved in the incident, the court felt it was right to also dismiss r li s under s2 of the ivil ia ility and ourts ct. The court concluded that Mr Ali had given misleading evidence regarding the circumstances of the accident, the nature of the impact and in particular the e ect of that accident on his nec and ac .

Core Principles in Assessing Damages Despite dismissing the claim, the court also concluded the level of award it felt would have een appropriate had the claim not een dismissed. r li had een awarded ,500 in the ircuit ourt and Twomey stated that the award he would have allowed, ta ing into consideration the principles set down y the upreme ourt, was 3,000. e also noted that should such an award have een received that this would have een negated y a di erential costs order, given that the istrict ourt was the more appropriate court. n relation to the discretion of a udge to ma e a di erential costs order he agreed with ardiman who in a previous upreme ourt decision had con rmed that the sole fact which triggers the discretion is that the plainti was awarded a sum which a lower court would have power to award. Twomey went on to state that where a claim is for minor soft tissue whiplash in uries, the plainti should carefully consider taking the case in the

Personal Injury Litigation

istrict rather than ircuit ourt so as to have an appropriate award made and not ris it eing reduced or eliminated y the di erential costs order. The court also set out the principles that ind the courts in awarding damages . ward should e fair to oth the plainti and the defendant 2. The award should e ust, e uita le and proportionate (e.g. minor in uries modest damages) 3. The award should e reasona le and proportionate to where in uries stand on the scale of minor to catastrophic and proportionate to the damages awarded for other in uries and noting that the cap for general damages which applies is 50,000 so as to avoid the concertina e ect . The award of damages should e reasona le in light of the ordinary living standards in the country and the general level of income in this country. Therefore, in considering the reasona leness of any award, the fact that it ta es the average person a full year to earn ,5 gross which amounts to 35,500 net pay after ta should e orne in mind. n relation to the oo of uantum, the court con rmed that this is not inding on trial udges as is clear from s.22 of the ivil ia ility and ourts ct 200 . n contrast, it noted that the decisions of the ourt of ppeal (which it noted has een appro imately halving damages) and the upreme ourt (which has expressly adopted the principle that modest damages should e made for modest awards) are inding. P

The award should be just, e uita le and proportionate (e.g. minor injuries = modest damages)

the Parchment 23


Loan Purchase Disclosure Darryl Broderick and Hilda Mannix assess two recent High Court decisions which ruled that a loan purchase price is only to be disclosed to borrower litigants in exceptional circumstances

I

n recent years the sale of non-performing loan portfolios by banks and other credit institutions to investment funds has become more prevalent. Consequentially, such funds feature regularly in court lists, either as plainti s see ing to enforce their acquired rights under the loan facilities or as defendants in proceedings brought by borrower litigants seeking to challenge those rights. Inevitably, the transactional documents which give e ect to the loan transfer (often a loan sale deed and deed of transfer) are e hi ited and or discovered in such proceedings and are usually subject to prior e tensive redaction (save for the relevant clauses which give e ect to the transfer and the schedule showing the relevant loan account(s)), on the asis that the redacted clauses are con dential, commercially sensitive, irrelevant to the matters in dispute and or contain information concerning third parties unrelated to the proceedings. One of the issues which arises frequently in such proceedings and is often the subject of much contention, is the entitlement of the borrower litigant to inspect and or o tain copies of the relevant documents in unredacted form, which would ultimately reveal the price paid by the investment fund for the loan(s) the su ect of the proceedings and related security. Understandably, this raises concerns for investment funds in protecting their commercial position in respect of future loan acquisitions.

24 the Parchment

Two recent decisions of the High Court in Courtney v OCM Emru Debtco DAC & Anor 20 0 and romontoria ( ran) imited v ndrew heehy 20 3 provide welcome guidance to investments funds and their legal advisors on the special circumstances in which a loan purchase price would need to be disclosed.

Courtney v OCM Emru Debtco DAC & Anor The background to this case involved plenary proceedings instituted y ileen ourtney ( rs ourtney ) against mru e tco ( ) and avid onnor ( the eceiver ) whereby Mrs Courtney challenged, inter alia, the validity of the assignment of her loans (originally advanced to her and her late hus and y nglo rish an orporation plc) from (a su sidiary of ) to . Prior to the completion of the loan sale, Mrs ourtney made an o er to purchase her loans from in order to prevent the sale, however this was declined. During the course of the proceedings, Mrs ourtney rought an application under rder 3 ule 5 to inspect unredacted copies of the relevant loan sale deed and deed of transfer which had been exhibited by OCM in the proceedings in extensively redacted form. he was particularly interested in those sections of the documents which related to the price allocated to her loans and the price paid generally.


Autumn 2019 dsba.ie Darryl Broderick is a partner and Hilda Mannix is a solicitor at Ronan Daly Jermyn Solicitors

Litigation

OCM opposed the application on the basis that the redacted portions contained information which was commercially sensitive, con dential and irrelevant to the matters in dispute. Further, OCM argued that the documents were documents of title which are e cluded from inspection under rder 3 ule 5.

and her solicitors counsel were re uired to give a number of undertakings to the court following that disclosure, in order to protect the con dentiality and commercial sensitivity of the information.

Decision

The Courtney case was considered by Quinn J in the High Court decision of romontoria ( ran) imited v ndrew heehy, which involved a claim for summary udgment y the plainti pursuant to facilities which it was alleged were granted to the defendant ( r heehy ) y lster an in 2005 (and renewed in 200 ) for the purchase of property in omania. The plainti ac uired the right, title and interest of Ulster Bank under the facility by glo al deed of transfer dated 2 e ruary 20 5, however the said deed of transfer only expressly referred to the 200 facility and not the 2005 facility which it replaced. ccordingly, the plainti also claimed alternative equitable reliefs in the form of, inter alia, restitution and damages for un ust enrichment, claiming that r heehy was not entitled to be unjustly enriched or otherwise ene t from the monies advanced. r heehy alleged that the signature on the 2005 facility letter was forged by one of the other third parties to the facility and that he was not a party to the renewal in 200 . The proceedings were ultimately remitted

aving particular regard to rs ourtney s pleaded claims, and without making any determination as to whether those claims were stateable, Haughton J found that the redacted parts of the loan sale documents relating to price, including any price attri uta le to rs ourtney s connection, were relevant to the case that Mrs Courtney was seeking to make and were fairly required to a ord a proper understanding of these key documents . aughton also re ected s argument that the documents were documents of title which were excluded from inspection, in circumstances where they relate to oth an assignee s title and also the title and obligations of the debtor. Finally, while the court was generally disapproving of the practice of redactions, it accepted s position that disclosure could adversely impact s position in relation to future loan ac uisitions (and indeed, s position in future loan sales). The court ultimately ordered full disclosure of the loan sale documents subject to limited redactions. Further, Mrs Courtney

Promontoria (Aran) Limited –v– Andrew Sheehy

Often the subject of much contention, is the entitlement of the borrower litigant to inspect and or obtain copies of the relevant documents in unredacted form

the Parchment 25


While it appears that there has been a shift in the court s position on the practice of redacting loan sale documents, it is noteworthy that the above cases to a large extent turn on their facts and in particular, the special circumstances of the pleas made by the parties

26 the Parchment

to plenary hearing and the judgment arose out of r heehy s application for discovery of four categories of documents, the most contentious being the category which requested all documents relating to the purchase price for the loans the subject of the proceedings. uring the course of the su missions r heehy argued that one of the proofs in establishing a claim for unjust enrichment is to show that he had been unjustly enriched at the expense of the plainti and it follows that at the hearing of the action, the court would need to examine the plainti s conduct and actions, including the transaction by which it acquired the loans and the price . urther r heehy alleged that the plainti had made no payment of substance . Conversely, the plainti argued that the principle means examining the respective equities of the parties to the loan, namely lster ank and the borrowers, and not the plainti as successor of the bank . It further submitted that it acquired the loans subject to and with the bene t or burden of any equities which may be relevant . ccordingly, it su mitted that the price paid could not be relevant, in circumstances where Mr heehy s failure to repay gave rise to an entitlement on the part of Ulster Bank to repayment both under the facility letters and also to the remedy of restitution of the money advanced.

Decision While Quinn J expressed some doubt about whether r heehy would e a le to esta lish at the hearing of the substantive proceedings that the price paid is a relevant factor in assessing the relative equities of the parties, he found that this was a matter for determination at trial, not at interlocutory stage. Further, he found that the request for discovery of documents relating to the price paid for the loan in this case was not a shing exercise , but that it goes to one particular fact and that the price paid for the loan had been “fairly put in issue by the proceedings . s regards the issue of commercial sensitivity, Quinn J agreed with the position of Haughton J in Courtney, whereby he held that commercial sensitivity of itself does not attract the same level of protection as a claim for

privilege. Further, Quinn J considered and agreed with aughton s position that the commercial interests of the party making the disclosure can be adequately protected by directing that no wider disclosure or use could be made without further leave of the court . ccordingly, uinn made discovery in terms of r heehy s re uest in respect of the documents relating to the price paid for the loan and directed similar restrictions regarding access to those documents as were made by Haughton J in Courtney. In particular, inspection was to be made only y r heehy and his solicitor and counsel and required undertakings by those parties “not to use or quote the information in open court or in any documents or electronic transmissions including further pleadings, requests for particulars and replies or a davits save with the redaction agreed inter parties or with leave of the court . otwithstanding the orders made y the court, it is noteworthy that Haughton J commented that it does not ow that a purchaser will e o liged to disclose a purchase price of an acquired loan (or documents relevant to that price) in every case where in enforcement proceedings an equitable remedy (such as an in unction) as well as a claim under contract is invoked. In addition, he stressed that having regard to the unusual circumstances of the facts of the case and the particular pleas made by the parties, it was appropriate to direct discovery of the documents relating to the price paid for the loan.

Comment The decisions are important for loan purchasers and their legal advisors. While it appears that there has een a shift in the court s position on the practice of redacting loan sale documents, it is noteworthy that the above cases to a large extent turn on their facts and in particular, the special circumstances of the pleas made by the parties. In that regard, it would e di cult to see how the same reasoning would be applied by the court in considering the relevance of the purchase price in the context of a loan purchaser suing on foot of a facility letter in summary udgment proceedings and or suing for possession on foot of related security. P


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Privacy in the Workplace – can employers Rely on Personal Communications to Dismiss? n this postera, employers are more conscious than ever efore of the limitations upon the processing of personal data, the need to respect employees right to a private life, and the re uirement to notify employees of when and how their data may e processed. ian eecher and elen We e amine the comple issue

T

he uestion of what data an employer may process or consider is increasingly di cult as lines are lurred etween personal and wor life. The core issue in relation to the right to privacy is whether an employee has a reasonable expectation of privacy over the speci c communications or documents. This is a uestion of fact. n aramu anwa v , the uropean ourt of uman ights ruled that it was not a reach of the right to privacy when an employer used, during a disciplinary hearing, material found y the police in an employee s personal note oo and phone, and emails sent to another individual s personal email account. Why n this case, a ey factor was that r aramu anwa was made aware at an early stage that an employee had made a complaint regarding his communications and he was informed they were inappropriate. s such, it was regarded he could have no reasona le e pectation of privacy over any similar materials connected to the complaint. et s ta e a closer loo at this case.

The Right to Privacy rticle of the uropean onvention on uman ights ( ) states “Everyone has the right to respect for his private and family life, his home and his correspondence. 28 the Parchment

There shall be no interference by a public authority with the exercise of this right except‌ is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The was incorporated into rish law y the uropean onvention on uman ights ct 2003 which provides that courts are re uired to interpret rules and laws in a manner which is compati le with the provisions.

The Facts r aramu anwa was employed y an Trust (the Trust ). e had a personal relationship with a colleague, s , which ended in ay 20 2. n une 20 2, r aramu anwa sent emails to a colleague and to s and another employee directly raising concerns that s had formed a personal relationship with s , a unior mem er of sta , and alleged inappropriate ehaviour at wor . s complained to her manager stating that she wanted r aramu anwa to leave her alone, and the manager spo e with him and e plained that he felt his email to s was inappropriate. u se uently, etween une 20 2 and pril 20 3, s and s were su ect to a campaign of stal ing and harassment with a num er of anonymous emails


Autumn 2019 dsba.ie Cian Beecher is a partner in the employment law practice group at Arthur Cox. Helen Webb is an associate at Arthur Cox

sent to colleagues and to s s personal email accounts. The emails were sent from anonymous accounts and were malicious in content. s and s also su ered damage to their property. n pril 20 3, s complained to the police that r aramu anwa was stal ing and harassing her and the Trust suspended r aramu anwa. r aramu anwa was arrested ut was not charged. owever, material found y the police during their investigations was handed to the Trust which included photographs of s s address on r aramu anwa s personal phone and details of the email accounts from which the anonymous emails had een sent listed on a sheet in a note oo . The Trust held disciplinary proceedings in ecem er 20 3. uring the disciplinary hearing, r aramu anwa voluntarily provided personal email and Whats pp messages etween himself and s in support of his defence. r aramu anwa was su se uently dismissed for gross misconduct and the Trust referred to various pieces of evidence including the material from his phone and note oo provided y the police, and the emails and messages provided y r aramu anwa himself. r aramu anwa rought various claims against the Trust including unfair dismissal, race discrimination and a reach of his right to privacy under rticle of the y e amining matters relating to his private

Employment Law

life and using that as evidence to ustify his dismissal.

Decisions of the UK Tribunals/Court The employment tri unal found rticle was not engaged and noted in particular that the emails were sent to wor email addresses and dealt with wor matters in part. r aramu anwa appealed. The mployment ppeal Tri unal re ected the appeal and said the employment tri unal was entitled to conclude that r aramu anwa had no reasona le e pectation of privacy in relation to the material relied upon y the Trust. n particular r aramu anwa had not o ected to the use of the material during the disciplinary proceedings nce s had complained to her manager (in une 20 2) who su se uently spo e to him, he could not have any e pectation of privacy in relation to emails sent to her, even if sent to her personal email address and referring to their prior relationship The content of the emails sent to s s private email address were not purely personal and referred to wor place issues too. n any event, even if rticle was engaged, any interference in r aramu anwa s rights was usti ed y the Trust s re uirement to protect the health and welfare of its employees.

n any event, even if rticle was engaged, any interference in r aramu anwa s rights was usti ed y the Trust s re uirement to protect the health and welfare of its employees the Parchment 29


The ourt of ppeal of ngland and Wales refused to grant permission to appeal the decision of the T. s a result, r aramu anwa rought proceedings in the uropean ourt of uman ights.

f an employee has een put on notice that a certain issue has een rought to an employer s attention i.e. misconduct, future communications relating to that conduct are unli ely to e regarded as private

Decision of the European Court of Human Rights r aramu anwa complained that Trust s decision to dismiss him relied on material that was private and the courts decision upholding his dismissal constituted a reach of his right to privacy under rticle of the . n particular, he asserted the Trust had no right to retain or rely on the evidence provided y the police or the emails and messages sent to s s private account or any other employee of the Trust. The uropean ourt of uman ights con rmed that sending and receiving communications is covered y rticle under the reference to correspondence and that communications from usiness premises as well as from home may fall within the remit of private life and correspondence and the protection of rticle . The court noted that the disciplinary panel of the Trust concluded that r aramu anwa had sent at least two anonymous emails which were malicious in nature and in doing so had relied upon evidence provided y the police from r aramu anwa s phone, and private emails and Whats pp messages provided y r aramu anwa and other employees. The court held the emails and photographs relied upon y the Trust to ustify the dismissal fell within the categories of private life and correspondence potentially protected y rticle . s a result, the court

had to determine whether r aramu anwa had a reasona le e pectation of privacy in relation to the material relied upon y the Trust to dismiss him. The ourt dismissed the appeal. t concluded ome of the emails sent to s were from a wor email address and covered wor issues (although as already noted such emails can fall under the right to private life). r aramu anwa could have no reasona le e pectation of privacy in relation to the materials referred to y pril 20 3 (when he was arrested and suspended from the Trust) he had already een aware for nearly a year that s had raised concerns regarding his communications and that the Trust considered them inappropriate i.e. since s s manager had discussed the matter with him in une 20 2. s a result, he could not have reasona ly e pected that any materials lin ed to the allegations y s would remain private after une 20 2. r aramu anwa had not challenged the use of the material from his phone or other private communications during his disciplinary hearing and had even voluntarily provided the panel with further private communications. This case can e distinguished from Barbulescu v Romania where the employee was not put on notice regarding the employer s monitoring activities. ote the court did not e amine the lawfulness of the passing of the evidence and emails to the Trust from the police as this had not een raised e pressly efore it or the courts. ( lthough this act of itself raises a num er of uestions in relation to privacy ).

Advice to Employers Whether or not an employee has a reasona le e pectation of privacy in relation to certain communications will depend upon the facts. emem er employees may have a reasona le e pectation of privacy over communications even if they are sent from usiness emails and include wor matters. ot every communication from wor falls outside the protection of the right to a private life. n assessment will have to e made on the particular circumstances (see the case of ar ulescu). f an employee has een put on notice that a certain issue has een rought to an employer s attention i.e. misconduct, future communications relating to that conduct are unli ely to e regarded as private. oti cation is the est way for an employer to protect itself in relation to the monitoring or review of employee communications. eference should e made in data protection policies to the circumstances when reviews may ta e place and should refer to more e tensive review and monitoring when investigating misconduct. n employee will struggle to assert privacy over a category of communications where they themselves have voluntarily provided e uivalent communications to support their position and they have not raised privacy as an issue at the earliest opportunity e.g. during disciplinary proceedings. P 30 the Parchment


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01/07/2015 15:01


Implied Undertaking as to Confidentiality for Practitioners Jessica Cantwell outlines that the case of Waterford Credit nion imited v avy 20 5 is a timely reminder to practitioners of their implied undertaking as to the con dentiality of any documentation and or information which comes into their possession through discovery

I

n the Waterford Credit Union case the Court of ppeal recently considered the implied underta ing on o cers of the court as to con dentiality in relation to documents and information disclosed during the course of discovery. This undertaking, the breach of which is considered contempt of court, prevents the use or disclosure of any documents and or information which practitioners have access to during a discovery process in su se uent unrelated proceedings. n other words, such documentation and or information must only e used for the purpose of the litigation concerned. This was illustrated by Keane J in Greencore Group plc v urphy 5 3 520where he stated that a solicitor for one party to litigation, who in the course of discovery in that litigation obtains possession of copies of documents belonging to the other party to the litigation, impliedly undertakes to the court that he will not use them, or any information derived from them, for a collateral or ulterior purpose, without the leave of the court or the consent of the party providing such discovery. he order requiring the production of documents is an invasion of the right of the person against whom the order is made to keep his documents to himself and it is for that reason that the court will ensure that documents are not used for any purposes other than the purpose of the particular legal proceedings in which

32 the Parchment

they are produced by making the order for production subject to that implied undertaking.

Background Waterford redit nion imited ( the redit nion ) engaged avy ( avy toc ro ers ) as oth nancial advisors and to invest funds on ehalf of the credit union. sum of over 5 million was provided by the credit union for investment in certain bonds which, it is alleged, the Credit Union were advised would guarantee the capital sum invested and also complied with the Trustee ( uthorised nvestments) rder . t su se uently transpired that the onds in which avy toc ro ers had invested the funds did not comply with this legislation nor was the capital sum invested guaranteed and the onds had no de nite maturity date. The credit union maintain that it would not have invested in these bonds, if not for the advice of Davy toc ro ers and allege that the stoc ro ers are guilty of misrepresentation, breach of warranty, breach of contract, reach of duciary duty, reach of statutory duty and negligent mis-statement and see an indemnity and or compensation in respect of the sums invested together with interest. During the course of the proceedings, the credit union sought discovery of three categories of


Autumn 2019 dsba.ie Jessica Cantwell is an associate at Eugene F. Collins

documents and successfully obtained an order of the igh ourt on 3 e ruary 20 . n appeal, avy toc ro ers contended that the trial judge erred in his application of the principles of relevance and necessity and secondly, raised an issue as to whether the trial judge took appropriate account of the fact (which was ac nowledged during hearing) that the credit union s solicitors had breached its implied undertaking as to con dentiality in relation to discovery of documents made availa le y avy toc ro ers in other proceedings in which the rm of solicitors had previously acted. The documents sought by the credit union concerned rstly an investigation y the rish toc change into avy toc ro ers role in the sale of investment bonds to credit unions; secondly documents relating to avy toc ro ers alleged disclosure of its role in the sale of the bonds and nally documents relating to meetings held etween the two parties at which it is alleged that Davy toc ro ers disclosed its role as principle in the sale of the bonds and the sums it earned as a result.

Decision Notwithstanding that the documents in question were considered to be relevant and necessary for

Litigation

the disposal of the case, the ourt of ppeal had to determine if the breach of the implied undertaking to the court by the credit union’s solicitors was so egregious that it should refuse to make an order for discovery in favour of the plainti , in respect of documents to which they would otherwise be entitled to on the basis of ordinary discovery principles. The ourt of ppeal weighing up the various issues, overturned the High Court’s order of discovery in respect of two of the rish toc change reports. The ourt of ppeal s rationale was to ensure that avy toc ro ers did not su er a litigious disadvantage as a result of the breach of the implied undertaking on the part of the credit union’s solicitors in relation to discovery made in a previous and entirely di erent case, in which the solicitors in uestion were acting for a di erent credit union. The ourt of ppeal endeavoured to mar “in a meaningful way the serious breach of the undertaking that had occurred , notwithstanding that the solicitors for the credit union submitted that the breach was entirely inadvertent . ccordingly, on appeal, the order of the High Court was varied, and the credit union was refused an order for discovery of the two reports they had sought. P

The credit union sought discovery of three categories of documents and successfully obtained an order of the High Court

the Parchment 33


Keeping People in their Homes? New Considerations for Courts in Possession Proceedings New legislation requires courts to take into account certain matters when deciding whether to grant a possession order to a lender in respect of a borrower’s principal private residence. Jennifer Halpin and Martina Firbank take a closer look at the new provisions

W

hile not as extensive as the “Keeping People in their Homes Bill” introduced by Independent Alliance Minister Kevin “Boxer” oran in 20 (and which did not ultimately nd favour), the overnment s and and onveyancing aw eform ( mendment) ct 20 (the ct ) is stated to implement the overnment s policy objective that repossession of a defaulting borrower’s principal private residence should remain an action of last resort. The Act was signed into law on 10 uly 20 and commenced on ugust 20 .

New Considerations In addition to any other matters it considers appropriate, the matters which a court must take into consideration when deciding whether to make or refuse a possession order in respect of a orrower s principal private residence (and may take into consideration when deciding whether to make any other order it considers appropriate in the circumstances) are (a) whether the ma ing of the order would e proportionate in all the circumstances and in 34 the Parchment

respect of which the court may have regard to (i) the total amount of de t outstanding on the mortgage concerned or associated loan agreement; (ii) the amount of arrears payments due on the mortgage concerned; and (iii) the advised mar et value of the principal private residence at the date on which the proceedings were commenced; ( ) the circumstances of the orrower and his or her dependents for whom the property the subject of the proceedings is their principal private residence; (c) whether the lender has made a statement to the borrower of the terms on which it would be prepared to settle the matter in such a way that the borrower and his or her dependents could remain in the principal private residence; (d) details of any proposal put forward y or on ehalf of the orrower either (i) to ena le him or her, or any dependents, to remain in the principal private residence; or (ii) to secure alternative accommodation (e) any response of the lender to the orrower s proposal to remain in the principal private


Autumn 2019 dsba.ie Jennifer Halpin is a partner in McCann Fitzgerald’s Real Estate Group. Martina Firbank is a senior associate at McCann Fitzgerald

residence; and (f) the conduct of the parties in any attempt to nd a resolution to the borrower’s mortgage arrears.

In what Circumstances must the New Considerations be Applied? The new range of considerations will apply in all cases in which (a) the court has ad ourned proceedings to facilitate consultation with a personal insolvency practitioner with a view to concluding a personal insolvency arrangement in respect of the orrower ( ) under the Personal Insolvency Act 2012; ( ) the court has ad ourned proceedings of its own motion but there has been no resulting PIA; (c) the court has refused to ad ourn proceedings in response to a re uest from one of the parties, or did ad ourn them, and there is no resulting (d) the proceedings have not een ad ourned ut the orrower has, prior to the court hearing (i) participated in a good faith scheme to assist borrowers in mortgage distress to remain in their principal private residence; or (ii) engaged the services of a personal insolvency

Property Litigation

practitioner to assist him or her to resolve his or her mortgage arrears problem and despite such engagement, there is no resulting .

Scheme for Eligibility The Minister for Justice and Equality may designate a scheme for the purposes of establishing eligibility to ene t from these new statutory o ligations on the courts. The objective of any such scheme must be to provide borrowers in arrears on mortgages over their principal private residences with assistance that is reasonably likely to enable them to address those di culties and facilitate, as far as possi le, their remaining in the principal private residence.

Conclusion While the impact of the Act in practice remains to be seen and many of the new considerations are ones that a court already ta es into account, the ct reinforces the special status of a person’s principal private residence in mortgage arrears proceedings. enders will need to ta e note and ensure that their current enforcement practices and procedures take appropriate account of that. P

The Act reinforces the special status of a person’s principal private residence in mortgage arrears proceedings

the Parchment 35


Irish Package Travel Regulations 2019 The EU Directive on Package Travel and Linked Travel Arrangements ( irective 20 5 2302) was transposed into rish law y the uropean nion ( ac age Travel and in ed Travel rrangements) egulations 20 ( . . 0 20 ) (the rish ac age Travel egulations). essica gan ta es a whistlestop tour of the new regulations

O

ne of the o ectives of the 20 5 directive was to adapt the current legislation on pac age travel to new online oo ing models. The rish ac age Travel egulations incorporate the e panded de nition of a pac age in the 20 5 directive into the e isting rish legislation (i.e. the ac age olidays and Travel Trade ct 5). n addition to traditional single contract pac ages, the de nition of a pac age now includes a road range of oo ing scenarios where y travellers self-select and purchase di erent com inations of travel service. Travel services under the regulations include the carriage of passengers, accommodation, car rental and other tourist services . ther tourist services is not de ned under the regulations however, it li ely covers a road range of services such as guided tours, tic ets to a concert or sporting event, spa services and or sports e uipment rental.

Establishing your Status under the Regulations Where a pac age is created, usinesses will need to esta lish whether they are acting as the organiser or retailer of that pac age. The relevant de nition of an organiser and retailer under the rish ac age 36 the Parchment

Travel egulations mirror the provisions of the 20 5 directive: n organiser is the trader who com ines and sells or o ers for sale pac ages, either directly or through another trader or together with another trader, or a trader who transmits the traveller s data to another trader in accordance with part (v) of the de nition of pac age , • A retailer means a trader other than the organiser who sells or o ers for sale pac ages com ined y an organiser. n understanding of whether the regulations are triggered is critical as there are signi cant o ligations on the organisers of pac ages under the regulations including utomatic allocation of responsi ility for the performance of the pac age to the organiser, re uirement to o tain insolvency protection for the refund of all payments made y or on ehalf of travellers in the event of the organiser s insolvency. The speci c type of insolvency protection re uired is prescri ed in the rish ac age Travel egulations, ompliance with the various information and contract re uirements.


Autumn 2019 dsba.ie Jessica Egan is an associate in the EU competition and procurement unit at A&L Goodbody

etailers will also need to assess their relationships carefully, in particular where the relevant organisers are esta lished outside of the . n these circumstances, the retailer may e lia le as the organiser unless the retailer can show that the organiser complies with the relevant rules.

Linked Travel Arrangements The rish ac age Travel egulations also incorporate the new concept of a lin ed travel arrangement ( T ) into the e isting rish legislation. n T occurs where . a traveller selects and pays for two types of travel service on a single visit to a usiness s point of sale or 2. where a usiness facilitates in a targeted manner the procurement of at least one additional travel service from another usiness where the second contract is concluded at latest 2 hours after the con rmation of the oo ing of the rst travel service. The concept of facilitates in a targeted manner is not de ned under the rish ac age Travel egulations however, it appears from recitals to the 20 5 directive that this is intended to cover scenarios where there is a commercial lin involving remuneration etween two

EU Legislation

traders. or e ample where a traveller oo s one travel service (e.g. a ight or a train ourney) and receives an invitation to oo an additional travel service at the chosen travel destination (e.g. hotel accommodation with a lin to the oo ing site of that other service provider or intermediary), there is li ely to e a commercial lin . Traders facilitating T s are also re uired to o tain insolvency protection in the manner prescri ed under the rish ac age Travel egulations.

Future Changes? There are several aspects of the regulations and the 20 5 directive which remain open to interpretation. The uropean ommission is assessing the application of the directive and a rst report on the application of the directive to online oo ings made at di erent points of sale was pu lished on 2 une 20 . n reland, the ommission for viation egulation has recently ( ugust 20 ) pu lished a consultation paper on e isting insolvency protection arrangements for consumers uying pac age holidays. The outcome of this consultation may in uence the form and amount of insolvency protection re uired y organiser and traders facilitating T s under the rish ac age Travel egulations 20 . P

Traders facilitating LTAs are also re uired to o tain insolvency protection in the manner prescri ed under the rish ac age Travel egulations the Parchment 37


Shane Neville is a partner in the litigation & dispute resolution department of LK Shields Solicitors and is a member of the Law Society of Ireland’s Professional Indemnity Insurance Committee

Case Dismissed Shane Neville and Ciara Smyth assess a recent High Court decision which ruled that a ve-year delay in furnishing discovery was found to e oth inordinate and ine cusa le

O

n 19th June 2019 the High Court handed down a decision in Walsh and Another v Blasco and Others which will e of considera le interest to oth litigants and legal practitioners who nd themselves involved in court proceedings that are not progressing with su cient speed. n dismissing the plainti s claim against their former solicitor, s ustice urns held that the plainti s had een guilty of inordinate and ine cusa le delay in progressing the proceedings. The udge reached the additional nding that the plainti s case was doomed to failure. The proceedings which ear a resem lance to the landmar case of Walsh v Jones Lange LaSalle, related to the 200 purchase y the plainti s of lands descri ed at auction as comprising . acres. inding and unconditional contract was entered into at auction etween the rst-named defendant (the vendor) and the second-named plainti (as purchaser). The second-named plainti agreed to pay the vendor a purchase price of 0,000 and paid a 0 upfront deposit. t would appear that the second-named plainti agreed to purchase the lands on his own ehalf and on ehalf of his co-plainti . The plainti s did not appear to o tain a survey of the lands prior to the auction nor, it seems, did they engage a solicitor until after the auction. The contract for sale signed at auction descri ed the lands y reference to the and egistry folio num er and did not contain any reference to the area of the lands.

38 the Parchment

t su se uently transpired that the lands purchased comprised only appro imately . acres, four acres fewer than had een indicated at auction. n 20 , su se uent to the completion of the transaction, the plainti s instituted proceedings against the vendor, the sales agents and auctioneers who handled the sale, and also the solicitor rm which acted for the plainti s (the solicitor rm). There followed signi cant periods of apparent inactivity in the proceedings. ollowing the upreme ourt s decision in Walsh v Jones Lang LaSalle Limited which narrowed the instances in which a sales agent or auctioneer would e held lia le for errors in the description of a property, the plainti s consented to orders eing made in 20 releasing the sales agents and auctioneers from the proceedings. The vendor and the solicitor rm remained as defendants.

Inordinate and Inexcusable Delay The solicitor rm rought a motion in late 20 see ing to dismiss the proceedings. The motion was grounded on two principal arguments rstly, the delay y the plainti s in prosecuting their claim against the solicitor rm was inordinate and ine cusa le and secondly, there was no reasona le cause of action in circumstances where the plainti s were contractually ound to purchase the lands prior to engaging the solicitor rm. The solicitor rm argued that a veyear delay in making discovery was inordinate and ine cusa le. The plainti s usti cation for this delay


Autumn 2019 dsba.ie Ciara Smyth is an associate solicitor in the litigation & dispute resolution department of LK Shields Solicitors

was the di culty they had incurred in o taining relevant documentation from their an .

Judgement n dismissing the plainti s claim against the solicitor rm, s ustice Tara urns relied on the principles enunciated in the seminal decision of Primor plc v Stokes Kennedy Crowley and held that a ve-year delay y the plainti s in furnishing discovery was oth inordinate and ine cusa le. The udge held that it was inconceiva le that it should have ta en ve years to o tain the re uired documentation to ena le the plainti s to ma e discovery. The udge said this was particularly so in circumstances where it was open to the plainti s to su mit a straightforward data su ect access re uest to their an to o tain the re uired documentation. n deciding where the alance of ustice lay for the purposes of the rimor principles the udge noted he principal of the solicitor rm asserts that she has su ered prejudice in various guises already cited in this judgment. hether memories fading with the passage of time really is a prejudice is questionable, as the issue in this case in reality is a legal question and a le is obviously in existence. owever, the principal of the solicitor rm , as a professional, will have su ered stress and anxiety as a result of these proceedings and as averred to by her, will have su ered a signi cant e ect on her professional indemnity insurance premium arising from this claim against her. his is a speci c prejudice which will have been ongoing since the time of the institution of the proceedings.

am of the view that this is a very real prejudice which is continuing, which have to have very serious regard to, particularly having regard to the strength of the case against her. n the particular circumstances of this case, am of the view that the nature of the case made against her is a proper consideration for me to have regard to in considering where the balance of justice lies, within the application to dismiss on the grounds of delay, rather than on a separate standalone basis

Doomed to Failure n concluding her udgment the udge also e pressed the view that the plainti s case against the solicitor rm was doomed to failure. The plainti s had entered into a inding and unconditional contract to uy the lands and they did so without any advice from the solicitor rm and without having inspected the lands. The udge held that no su se uent advice received from the solicitor rm could have released the plainti s from their contractual o ligation to purchase the lands, even if their su ect area was less than that descri ed at auction. The udge stated that the most the plainti s could have done at that point was refuse to complete the sale, leaving them open to an action for speci c performance y the vendor, which they ultimately would have lost. The udgment will no dou t e welcomed y professionals and their professional indemnity insurers, who often have the unenvia le tas of defending claims rought many years after their su ect events, when memories have faded, and documents have een lost or destroyed. t acts as a crucial reminder to plainti s to prosecute their claims in a timely manner. P

Litigation

The udge held that it was inconceiva le that it should have ta en ve years to o tain the re uired documentation to ena le the plainti s to make discovery

the Parchment 39


Photographs and Privacy – When does an Expectation of Privacy Arise? A recent Court of Appeal decision provided some interesting comments on the right to privacy in the context of photographs published by media organisations, where those photographs, obtained through legal means, are of a private individual at a private party. David Kavanagh takes a closer look

Brian Nolan and Sunday Newspapers Limited Trading as The Sunday World [2019] IECA 141 The plainti issued proceedings claiming defamation and a breach of his constitutional right to privacy arising out of two articles published by the defendant. The articles, viewed by the Court of Appeal judge as being “salacious in nature”, were accompanied by photographs of the plainti attending what were described as sex parties or “swingers’ parties” in the company of females who were “scantily clad”. The photographs had been provided to the defendant by the plainti s then partner, following the rea -up of the relationship. The plainti gave evidence that some of the photographs were not even taken at the “swingers’ parties” but were in fact taken at a private Halloween party. In the High Court the trial judge Mr Justice Tony O’Connor sitting without a jury, found that the plainti s right to privacy had not een engaged because: The plainti only had a loose understanding or agreement with unidenti ed individuals that the photographs taken at the parties would not be disclosed to anyone outside the group who attended the parties, without the consent of those attending; and that the plainti had consented to the ta ing of 40 the Parchment

photographs by a stranger who attended the party; and • it was clear that those photographs were freely available among up to 26 people of whom he might have only known four at most. n any event, he felt that the plainti would e adequately compensated by the damages awarded in respect of the defamation claim. The defendant appealed the decision of Mr Justice onnor and the plainti cross-appealed in relation to the decision by Mr Justice O’Connor that his right to privacy had not been engaged.

Conclusions n the ourt of ppeal r ustice eart, in nding that the plainti s right to privacy had in fact een engaged and that there had been a breach of that right to privacy, made the following points: • It was not known who owned the photographs; • It was implicit that the photographs would never be published in a newspaper without the consent of the other attendees who could e identi ed • The photographs were not taken in the public arena; The plainti s consent to the photographs eing taken did not amount to a waiver of his right of privacy in respect of those photographs. Mr Justice Peart concluded that they were private


Autumn 2019 dsba.ie David Kavanagh is a partner in litigation and D] dispute resolution at Dillon Eustace

photographs taken for a private purpose which were never intended to be made public. He also found that the defendant was aware that the publication of the photographs was an invasion of the plainti s privacy as it had pixelated the faces of the other persons in the photographs and knew that he did not consent to the publication of the photographs. r ustice eart was satis ed that there was no overriding public interest to be served by the pu lication of the photographs. The plainti is not a pu lic gure. e was a private person despite the fact there had been some limited publicity surrounding his conviction some ten years previously and his even earlier status as an inter-county foot aller with some success. The defendant’s argument that its right to freedom of e pression outweighed the plainti s right to privacy was therefore rejected. Mr Justice Peart found that the breach was “deliberate, conscious and premeditated”. Mr Justice Peart noted that the trial judge had distinguished this case from cases where the breach of privacy had emanated from an illegal act. In this case the photographs had not been obtained illegally. e awarded the plainti 50,000 for the reach of privacy aspect of the claim.

Comment n overturning the nding of the trial udge that the plainti s privacy had not een engaged, r ustice eart ac nowledged that where a plainti has pleaded that his right to privacy has been breached in addition to pleading that he has been defamed, the plainti is entitled to e compensated under oth heads of claim. Had the decision of the High Court trial judge been upheld, it may have led to a situation where a plainti s claim for a reach of privacy could not be fully ventilated if that claim was included in proceedings where a claim under a separate head of loss would provide a greater award of damages than the claim for breach of privacy. Mr Justice Peart’s

Media Law

decision on that point was delivered with signi cant clarity. Another interesting point relates to Mr Justice eart s nding that the photographs were not ta en in the public arena. The judgment of Kearns P in Hickey and nother v unday ewspapers imited 20 0 3 noted that it was far from easy to determine where the parameters to the right of privacy may lie when placed in balance with the right of freedom of expression. ne intuitively feels that a right of privacy is less easily established in public places where a person, in the words of . . liot, has had time to prepare a face to meet the facers that you meet . In Hickey the plainti was photographed with her son coming out of the Registry of Births, Deaths and Marriages on Lombard Street in Dublin. The photographs were taken when the photographer and plainti s were in a pu lic place and performing a routine public function. There could be no expectation of privacy in that instance. In olan, it was found that the photographs of the plainti were private, ta en for a private purpose and were never intended to be made public despite being freely available among up to 26 people. Those two cases, olan and Hickey, are probably located at either end of a spectrum of cases that consider what a public arena is. It will be interesting to watch over the coming years how courts will deal with cases on that spectrum. It is relatively easy to see how disputes may arise over what precisely is a public arena, particularly where people might attend an event with di erent e pectations of privacy. The Nolan decision may also have implications where images are published which were initially shared via social media to closed groups of people. How the courts will balance the right to privacy with the right to freedom of expression in those circumstances will undoubtedly provide challenges for those in media organisations when considering what photographs can be safely published. P

The defendant was aware that the publication of the photographs was an invasion of the plainti s privacy as it had pixelated the faces of the other persons in the photographs and knew that he did not consent to the publication of the photographs

the Parchment 41


Debt Recovery Stabilised? The publication of the Courts Service Annual Report 2018 highlighted ongoing economic and societal changes by way of hard data. Jason Harte assesses debt recovery litigation and enforcement trends

Like its 2017 predecessor, the 2018 report has noted that the volume of creditor litigation and enforcement has fallen, but not at a rate that has been as dramatic as previous years

I

n his foreword to the report Chief Justice Frank Clarke references our digital age, noting that people are used to round the clock online access to services . e adds that the courts must deal with the twin challenges of facilitating such access while at the same time ensuring that the court process is secure and that cases are allocated the time and consideration they require . In a recovering economy, court users can take some solace from the fact that the resources and funding received by the Courts Service has increased in the past couple of years. This has facilitated much needed modernisation, as noted in the report. In the debt recovery litigation and enforcement sphere, the report goes on to con rm certain trends visi le in the wider economy as identi ed in previous Courts Service annual reports.

Default Judgments One obvious means of tracking debt activity in the courts is by way of the numbers of monetary judgments obtained against debtors, in default of appearance or of defence. We had previously noted here that these had fallen dramatically, from a peak back in 2010. Creditors obtained 11,689 of these judgments in 2018 compared to 9,637 in 2016. However on a closer analysis, the numbers of default judgments in both the High and Circuit Courts continued to fall, with the rise on the 2017 equivalent being only re ective in the istrict ourt gure. This may suggest though that care has been taken in post-recession credit e tensions y an s and businesses, with such credit to new customers not being provided for amounts over â‚Ź15,000, the upper end of the istrict ourt monetary urisdiction.

Judgment Enforcement Proceedings This levelling out in overall default judgments can also be seen in other areas of enforcement. The report 42 the Parchment

notes that there was ust an drop in the pu lication of udgments year-on-year, as well as a 2 decrease in the number of instalment order applications issued in 2018. This occurs where a creditor applies to the istrict ourt for an order compelling the de tor to pay the de t y ed instalments. Finally the total number of judgment mortgage certi cates signed y the rish courts in 20 stood at 2, 2 representing an decrease on the 20 equivalent. These decreases, whilst indicative of an on-going trend, are still not as pronounced as those of previous reports.

Personal Insolvency The trend towards a small drop levelling o in collection and enforcement activity can also be seen in general insolvency cases where for e ample, the report notes that 382 debtors issued petitions to declare themselves bankrupt in 2017. This compares to 545 in 2017, and 559 in 2016. Creditors issued some 55 petitions in 2018, a small increase on the 47 in 20 . imilarly, the gure for creditors commencing bankruptcy via a bankruptcy summons, rose more dramatically 05 summonses in 20 , as against in 2017. However, there is a sense that more creditors were availing of an ruptcy as the last-resort option, against particularly uncooperative debtors before nally closing o the cases. Perhaps more notably, there was a more signi cant decrease in applications to the courts for the various debt resolution arrangements available under the Personal Insolvency Act 2012. In total during 2018, the report notes that the High and Circuit Courts dealt with 984 such applications, compared with 2,445 in 2017.

Residential Property Repossessions Perhaps not surprisingly, in a year dominated by the


Autumn 2019 dsba.ie Jason Harte is a partner and head of debt recovery at Mason Hayes and Curran

conclusion of tracker mortgage reviews by many of the country s lenders, gures for court activity on residential mortgage enforcement also declined. We had previously highlighted that in order to get an order permitting it to repossess a defaulting customer s principal dwelling house ( ), a creditor had to issue proceedings in the Circuit Court. This led to a surge in these cases, particularly in 2014. The number of new cases commenced dropped to 2,179 in 2018, the lowest it has been since the commencement of the 2013 Land and Conveyancing Law Reform Act. Similarly the number of actual orders for possession (made y the ircuit ourt) fell from 878 in 2017, to 700 in 2018. Obviously 2018 also saw the completion of signi cant sales of residential mortgage loan portfolios by lenders. Regulation of international investment funds, which have purchased such portfolios, has also been increased. Although the level of mortgage arrears in Ireland has dropped over the past ve years especially, there remain many unresolved cases of long-term arrears that will invariably give rise to repossession applications, so these gures are li ely to rise. This is especially so given the facts of increased portfolio sales and the completion of tracker mortgage investigations by Irish lenders.

Debt

demonstrated in collection and enforcement gures over the past ve years or so. The fact that this seems to have levelled out generally following the end of the recessionary years, and is now being followed by a small increase in udgment activity at istrict ourt level, indicates a recovered economy. This aligns with the natural time lag between this type of credit activity in the real economy and its consequent appearance in the legal system. Undoubtedly, both that economy and wider society will continue to change signi cantly, which will e re ected in future reports. P

Comment Like its 2017 predecessor, the 2018 report has noted that the volume of creditor litigation and enforcement has fallen, but not at a rate that has been as dramatic as previous years. There is increased availability of tools and services to monitor the e tension and maintenance of credit in this digital age. onetheless, an overall unwillingness to e tend credit in the banking and business sectors is the Parchment 43


Financial Loss Claims Statute Barred John O’Riordan and Roisin Peart review a recent Court of Appeal decision in antrell rs v llied rish anks lc rs ( 8 uly ). The decision overturned a nding of the igh ourt in one of the so-called pathway cases , setting the parameters for hundreds of investors see ing damages against and a num er of other defendants for losses made on their investments

High Court The appeals arose as a result of a decision of Mr ustice aughton in the igh ourt (delivered on 2 pril 20 ) on a preliminary issue as to when the time limitation periods started to run for claims arising from losses su ered y investors following their investment in certain elfry property investment schemes (the elfry unds ). component of the investment included a loan where y de t was ac uired with a loan to value ( T ) covenant which meant that if the property value fell elow 0 of the purchase price of the assets, there would e an automatic default and crystallisation of the oating charge, entitling the lender to dispose of the assets. The investors who claimed to have entered into the elfry unds on the asis of representations made in the investment prospectus and other mar eting material, said that they received no notice of this covenant or its potential negative impact until they received a letter from the defendants in 200 indicating that the property value had fallen elow 0 of the purchase price and that an event of default had occurred. ltimately, the investors lost all of their investments and commenced proceedings in 20 see ing damages for reach 44 the Parchment

of contract, negligence, reach of duty, negligent misstatement and misrepresentation. The igh ourt held that the limitation period in relation to the reach of contract claims egan on the date the investors entered into the contract which, as it was in e cess of si years from the date of commencement of the proceedings, meant those claims were statute arred. The remaining claims in tort were split into three categories y the udge ( ) negligence simpliciter (2) negligent misstatement misrepresentation and (3) negligence and reach of duciary duty mismanagement. n respect of ( ) and (2) it was held that the si -year limitation period only egan to run when the actual damage occurred. That was found to e the date when the audited accounts demonstrating the actual loss in shareholder value were signed o y the directors. s that fell within the relevant limitation period, the claims were not statute arred. iven the a ove ndings r ustice aughton found that it was unnecessary to determine whether the investors were entitled to rely on an allegation of fraud in relation to the alleged non-disclosure of the T covenants which would have the e ect of postponing any limitation periods.


Autumn 2019 dsba.ie John O’Riordan is a partner at Dillon Eustace. Roisin Peart is a professional support litigation lawyer at Dillon Eustace

Court of Appeal The uestion to e determined y the ourt of ppeal ( eart , c overn and a er ) was whether r ustice aughton erred in distinguishing etween the di erent categories of investor claims (as they arose from the same set of facts) and in his overall nding that the investors were not statute arred in their claims of misrepresentation and negligent misstatement. The court found that the trial udge was incorrect in his conclusion that the damage was manifest only when the loss actually occurred and found instead that the T covenants, which gave rise to the ultimate loss of the investments, were present and capa le of eing discovered at the time of the original investment. urthermore whilst aughton was correct that the relevant uestion was when the damage was caused, the court found that he was incorrect to conclude that this happened only when it showed in the accounts. ather the cause of action accrues when the plainti s were in a worse position than they would otherwise have been and this was sometime after the investments were initially made when the T covenants were entered into for the purposes of securing the orrowings. s this fell well outside of the relevant limitation period the appealed

claims were statute arred and it was not necessary for the court to consider whether the trial udge was correct to distinguish etween the di erent categories of claims. s the trial udge had made no determination of fact regarding the allegation of fraud in relation to the claim of non-disclosure of the T covenants, which would have the e ect of postponing any limitation periods, that matter has een returned for determination y the igh ourt.

Comment This is a hugely signi cant case, not only ecause it sets the parameters for the other hundreds of claims arising from the elfry unds, ut also ecause it highlights the circumstances and factors that a court should consider when determining if a claim for nancial loss is statute arred. f particular note is the reluctance e pressed y the ourt of ppeal to conclude that a time limitation should run efore a plainti new, or could have nown, of the cause of action and its reference to the fact that legislative provisions have een implemented to rectify this in the case of personal in ury claims, ut not for other types of damage including claims for nancial loss. P

Litigation

Whilst aughton J was correct that the relevant uestion was when the damage was caused, the court found that he was incorrect to conclude that this happened only when it showed in the accounts the Parchment 45


Working Time - Employers’ Responsibilities Ciara O’Kennedy takes a fresh look at the Organisation of Wor ing Time ct (the WT ct ) which regulates the rest periods and hours of wor for employees

T

he OWT Act applies to all employees wor ing in reland with certain limited e ceptions including doctors in training, members of an Garda Síochána and those who are self-employed. reach y an employer may result in a claim efore the Wor place elations ommission ( W ) and the employer eing criminally prosecuted. The ey provisions include Breaks and rest periods mployees have a statutory entitlement to minimum rest rea s. daily rest rea of 5 minutes is re uired where an employee has wor ed more than four and a half hours, and 30 minutes where more than si hours have een wor ed, which may include the initial 5 minutes. series of successful W claims were recently ta en y employees who alleged that their employer, a well- nown oo ma er, had reached the rest rea provisions of the WT ct. n one case, the employee su mitted that it was not su cient for the employer to put the onus on the employee to ta e rea s, relying on the decision of the a our ourt in Tribune Printing & Publishing Group v Graphical Print & Media Union that an employer’s obligation extends beyond merely providing employees with opportunities for rest rea s, ut to ensure that employees in fact ta e their rest rea s. Employees are also entitled to a daily rest period of consecutive hours rest per 2 -hour period a wee ly rest period of 2 hours consecutive rest per wee , preceded y a daily rest period of consecutive hours, is also re uired.

Records mportantly, it is the employer s responsi ility to prove compliance with the provisions of the WT ct. ccording to the W , failure to eep ade uate 46 the Parchment

records is the most common breach of employment legislation. ccordingly, employers must have a system in place that records rest rea s, start and nishing times, hours wor ed on a daily and wee ly asis and annual leave ta en. These records must e maintained for a period of three years. n the oo ma er cases mentioned a ove, the employer sought to rely on an e emption from its o ligation under the WT ct to record rest rea s (under the provisions of egulation 5 of the rganisation of Wor ing Time ( ecords) ( rescri ed orm and emptions) egulations 200 ). n order to rely on the e emption, the employer would need to have electronic record- eeping facilities such as e i-time or cloc ing-in facilities . n this particular case, the d udication cer of the W found that whilst an electronic point of sales system recorded start and nishing times, it did not record the time and duration of employees rea s, therefore preventing the employer from relying on the e emption. n ay 20 the uropean ourt of ustice ( ) held in v eutsche an , (a case referred y the panish national courts), that mem er states must re uire employers to put in place an o ective, relia le and accessi le system ena ling the duration of wor ing time wor ed each day y each wor er to e measured . s stated a ove, rish law (under the WT ct) already re uires employers to operate a system to maintain such records. The reality appears to e that many rish employers fail to record the wor ing time of employees. The W may rely on this recent case to reinforce the importance of complying with the e isting rish legislation, oth in their decisions and in wor place inspections. ccordingly, it is imperative that employers record employee wor ing time appropriately and accurately


Autumn 2019 dsba.ie Ciara O’Kennedy is a partner at LK Shields. She is chairperson of the DSBA Employment Law Committee

in order to identify, rectify and where necessary, refute claims in respect of non-compliance with the WT ct. i erent methods for recording wor ing time (including rest rea s) may e employed depending on the nature of the employer including cloc ing-in systems, designated T systems or paper records, each of which an inspector from the W has powers to access. The opinion of the s dvocate eneral in the eutsche an case a ove suggests that such registers would need to e immediately accessi le to the W if re uested of an employer.

Other obligations - Night Work, Annual Leave and Maximum Working Week An employer has additional responsibilities in respect of night wor , annual leave and the ma imum wor ing wee . Where employees normally wor at least three hours etween the hours of midnight and am, and the num er of hours wor ed etween midnight and am accounts for more than 50 of the employee s total num er of hours wor ed in a year, the employee is considered a night wor er . ight wor ers may not wor more than eight hours in a 2 -hour period which may e averaged out over a period of two months.

Employees are Entitled to Paid Annual Leave Equal to: our wor ing wee s in a leave year in which the employee wor s at least ,3 5 hours ne third of a wor ing wee for each month in the leave year in which the employee wor s at least hours or ight per cent of the hours the employee wor s in a leave year su ect to a ma imum of four wor ing wee s. enerally, an employee can wor a ma imum average of hours in each period of seven days.

Employment Law

mployers should remem er that allowing employees to wor outside of o ce hours for e ample, sending or even receiving emails may expose them to a claim under the WT ct (see epa v r inne ara).

Work Life Balance ot only are the a ove matters an employer s statutory responsi ilities, ut mental health and well- eing in the wor place can undou tedly (amongst many other factors), e positively impacted y the responsi le management and monitoring of an employee’s wor ing time. The s focus on an employer s active responsi ility in not only facilitating ut ensuring an employee does not wor e cessively, often to the detriment of other areas of their life, is also evidenced y the uropean ommission s une 20 adoption of the Wor ife alance irective (the irective ). This directive seeks to increase the participation of women in the wor force, particularly through e i le wor ing arrangements and four months parental leave, and envisages that companies will ene t from more motivated wor ers . While trust and autonomy are crucial for the success of e i le wor ing arrangements such as wor ing from home, from an employer s perspective, the e ciency of such arrangements will need to e monitored carefully which may incidentally lead to improved compliance with employers statutory o ligations to record wor ing hours and rest rea s.

Employers should remember that allowing employees to wor outside of o ce hours for e ample, sending or even receiving emails may expose them to a claim under the OWT Act

Risks of Non-Compliance with the OWT Act n employer should ta e all necessary procedural steps to ensure compliance with the ct as failure to do so runs many direct and indirect ris s, not least a potential ne of up to 2,500 if found to e acting in reach of the ct, possi le claim efore the W and the negative reputational damage associated with the perceived or actual ill treatment of employees. P the Parchment 47


Intellectual Property

Maureen Daly is partner and head of the technology and intellectual property team at Beauchamps

Significant Changes to Copyright Law The Copyright and Other Intellectual Property Law Provisions ct 20 (the 20 ct) was signed into law y the resident on 26 June 2019. Maureen Daly outlines some key changes and amendments to the Copyright and Related Rights Act 2000

A key amendment provided y the 20 Act is the extension of the jurisdiction of the District and Circuit Courts to include certain intellectual property ( ) claims

A

t the outset it should e noted that while the President signed the 2019 Act into law last June, the Act has not yet commenced. A commencement order is re uired to ring the legislation into e ect and this is e pected to e drafted in the coming weeks. The 2019 Act amends the Copyright and Related Rights Act 2000 to take account of certain recommendations made y the opyright eview Committee in the report entitled “Modernising Copyright” pu lished y that committee in cto er 2013 and also to include certain exceptions permitted y the nformation ociety irective 200 2 EC. The 2019 Act modernises copyright law in reland and see s to reduce arriers to innovation in the digital environment. It will also give greater protection to rights holders while at the same time facilitating access to creative content for users and wider society.

e heard uic er and will incur lower legal costs than if proceedings were rought in the igh ourt.

New Court Jurisdiction

ther amendments rought in y the 20 ct include • Creating an exception for use of copyright works to allow for caricature, pastiche and parody • Extending the exception to copyright for news reporting That authorship of a lm soundtrac accompanying a lm is to now e treated as part of the lm • In the context of photographs, it is now an infringement to tamper with metadata associated with the photographic works • Amending the term of protection for copyright in designs and artistic wor s from a 25-year term to life of the creator plus 70 years • Creating an exception for text and data mining for non-commercial research. This will allow researchers (who have lawful access) to ma e copies of any copyright material for a computational analysis for the sole purpose of research for a noncommercial purpose and provided it is accompanied y a su cient ac nowledgement. This e ception will support the increase in use of this research technique.

ey amendment provided y the 20 ct is the extension of the jurisdiction of the District and Circuit Courts to include certain intellectual property ( ) claims. This is to facilitate lower value infringement cases eing rought efore these courts. The Circuit Court may now hear copyright actions where claims are in excess of €75,000 while the District Court can hear claims with a value of up to €15,000. As a result of this amendment, infringement actions y copyright owners will now

Improved Access The 2019 Act expands the existing copyright exceptions for education, to allow teachers to display wor s on a white oard to illustrate a point, or to provide education y means of distance learning and education over the internet, in line with the changing methods of providing education and training in Ireland. The 2019 Act also includes an amendment which will allow a designated, non-pro t organisation which ma es or supplies modi ed wor s for people with disa ilities to create multiple copies and to facilitate the supply of those copies to another similar organisation as well as directly to individuals with a disa ility. urthermore, a new o ligation is placed on pu lishers to ma e certain wor s availa le to such organisations on request.

Other Amendments

The 20 ct will e welcomed y owners as it recognises the varied situations where reaches of rights may arise due to the use of modern technology. 48 the Parchment

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Autumn 2019 dsba.ie

DSBA Younger Members

Successful DSBA Younger Members’ Event The Dublin Solicitors’ Bar Association Younger Members ( ) hosted another lively event on th uly 20 at the o ces of c ann it erald. n this occasion, three spea ers were invited to present on the topic “Update on Planning and evelopment and roperty aw

S

peaking at the event Seán O’Sullivan, BL discussed the planning process relating to trategic evelopment ones ( ) and the much-pu licised issue regarding the interplay between the Urban evelopment and uilding eights uidelines (the uidelines ) and e isting planning schemes in s. This issue formed the subject of the decision of Mr Justice Garrett Simons in pencer lace evelopment ompany imited v ublin ity ouncil, 20 384. SDZ is key to the delivery of thousands of new homes at Poolbeg and Cherrywood. Advising attendees on the relevant procedure to appeal a planning decision made in respect of an SDZ, Seán stated “the planning system for s is protected from both appeal and interference and consequently the scope for challenge is extremely restricted. n such a tight space, knowing where the line is, is where the advantage lies . Katie Creelman, solicitor and tax consultant at Grant Thornton discussed practical tax considerations for solicitors in commercial property transactions with a view to identifying potential issues at an early stage and delivering value to clients in cases involving tight deadlines. Katie recommended including a detailed cover letter to Revenue with unusual CG50 applications in order to avoid delays. Katie also outlined the uali cation criteria for the tamp uty esidential Refund Scheme and stressed the importance of getting the refund application correct as refunds from that scheme may form a signi cant source of funding for the relevant construction project. Katie emphasised the importance of advising clients to observe timelines for construction set out by Revenue to avoid potential costly clawbacks. Brendan Slattery, head of environment and planning at McCann FitzGerald, outlined some of the regulatory tools used by Government to deliver the ebuilding reland programme, the n action-plan to increase the overall supply of new homes to 25,000 a year by 2020. He explained the three recent challenges to the operation of the fast-trac trategic ousing Development Scheme, the use of the system for new models of shared living and the continued rise in the number of applications received by an Bord Pleanála since the relevant legislation came into e ect in uly 2017. Brendan alerted those present to their personal e posure to criminal lia ility when en oying short-term

Brendan Slattery (McCann Fitzgerald); Katie Creelman (Grant Thornton) and Sean O’Sullivan, BL - speakers at the DSBA Younger Members’ event

lettings as overnment clamped down on ir n like uses of property since July 2019. Closing proceedings on the evening Deirdre Farrell of Amorys Solicitors and DSBA YM invited junior members to visit the committee’s LinkedIn page to nd out a out future events and or to suggest ideas for next events, educational or social. DSBA YM is a committee of the DSBA Council which represents the interests of junior members of the profession. DSBA YM aims to host events at least once every quarter. Next year DSBA YM will focus on developing new ties with junior members of other professional bodies. A short reception followed where members had the opportunity of discussing further the recent judicial review decision relating to development at North Lotts Quay which was in view from the function room. DSBA YM would like to thank McCann FitzGerald for its generous support of the evening. P ee pages 8

Brendan Slattery outlined some of the regulatory tools to deliver ebuilding reland

for further photos of the event. the Parchment 49


News

DSBA Trump the Bar at Annual Cricket Contest

Photos: Declan Corrigan

The 12th of July 2019 saw the third annual John F Buckley cricket match between the DSBA and the Bar Council of Ireland at Leinster Cricket Club in Rathmines. The match saw the DSBA team win for the rst time since the inception of the match in 2017. The ar ouncil chose to at rst and posted a respecta le target of 3 runs o 20 overs. There were some ne individual displays of atting y the ar ouncil and they were uietly con dent that they could eep the team at ay when the egan their atting. s the sun egan to set over athmines the egan to slowly chip away at the 3 target. avid c linden and Timothy c owell la ed an early trial and then recently retired Irish international Cecelia oyce and icolette enno provided a formidable middle order for the DSBA. s the light egan to fade it seemed that the would fall agonisingly short ut ody Toner and ata a lynn entered the eld at 0 and and their rave nal stand 50 the Parchment

saw the over the nish line with the last all of the match. telegram arrived from the at the end of the match from oin organ congratulating oth teams and suggesting he would use the never say die attitude of the DSBA in his team talk before the World up inal. The players and spectators met on the pitch after the match where the ohn uc ley trophy was presented to the . rs laire uc ley, the wife of ohn uc ley was in attendance with her daughter rla uc ley of eauchamps together with iall uc ley, arrister at law. The customary curry and drinks were served in the clubhouse afterwards with a special than s to iall arroll and all the mem ers and sta of einster ric et lu for their warm hospitality. A little known fact about the venue is that einster ric et lu hosted the rst ever rish rug y international in . atthew enny ( enny olicitors).

ouncil and

ullivan


Autumn 2019 dsba.ie

News

50+ Years in Practice

A lunch was hosted by the DSBA in honour of Dublin solicitors who are 50 years (or more) in practice on 4th October 2019 at the RDS, Ballsbridge. See pages 52 and 53 for more photographs of the event.

Reddy Charlton Charity Initiative eddy harlton too part in the annual right for ight initiative in aid of ightsavers at their o ces on 2 st une 20 . ater this month ( cto er), two intrepid teams from eddy harlton will abseil 150 feet from the roof of

the ogan tand in ro e ar to the hallowed ground elow ll proceeds raised are eing donated to ightsavers. So far Reddy Charlton has raised over ,000 which will result in 2 sightsaving operations.

Farewell Norman Photo: Team Reddy Charlton – Niamh Gibney, Emilee Graham, Roisin Bennett, Ciara Smullen, Tom Marren

he archment is sad to report the death of well known law clerk Norman St John. Pictured above with former DSBA resident ine ynes, the rm of t ohn Solicitors was called after him. Norman devoted over 65 years of loyal and dedicated service to the legal profession efore retiring in 20 . r dheis go rai h a anam dilis. the Parchment 51


50+ years in Practice

A lunch was hosted by the DSBA in honour of Dublin solicitors who are 50 years (or more) in practice on 4th October 2019 at the RDS, Ballsbridge. There was a large attendance to mark this very special annual occasion.

Photography: Owen O’Connor

Left: Noel Tanham, David Cox, Henry Blake and Judge Patrick McMahon

Left: Maire Cunneen and DSBA President Greg Ryan Far left: John Rochford, Barry Doyle, Ailin Doyle and Bryan O’Flatherty

Right: Michael O’Shea, Joan O’Shea, David Cox and Kenneth Clear Far right: Esmond Reilly, Martin Kennedy and Susan Martin

Left: Caroline Lynam, Geraldine Madigan, Elma Lynch and Maeve Hayes Far left: John Fitzpatrick, Thomas O’Reilly and Derek Burke

52 the Parchment


Autumn 2019 dsba.ie

Left: Gerard Gannon, Caroline Lynam and Andrew Smyth Far left: John Rochford and Henry Blake

Right: Tom Menton and James Mackey Far right: Myra and Norman Gruson

Left: Anthony Collins, Maeve Hayes and John Fish Far left: Tony O’Sullivan, DSBA Vice President and Michelle Linnane

Right: Robert Blakeney and Anthony Kirwan Far right: Fintan Clancy and John Temple Lang

the Parchment 53


DSBA Litigation Seminar

The DSBA Litigation Committee hosted a CPD seminar on 20th June 2019. The seminar was entitled “Litigation Update – Section 35 of the Civil Liability Act 1961; the Cap on General Damages; Bullying and Harassment Cases; Defamation.” The speakers were Micheál Ó Scanaill, SC; Marguerite Bolger, SC and John Doyle (Dillon Eustace). The seminar was chaired by Mr Justice Bernard Barton.

Photography: Michael Finn

Left to right: Micheál Ó Scanaill; Mr Justice Bernard Barton; Marguerite Bolger; John Doyle; Killian O’Reilly

Left: Jean Anne Norton, Rostra Solicitors; Marcin Szulc, Rostra Solicitors Far left: Fiona Scally, Barra O’Cochlainn, Colm O’Cochlainn; Avril Scally

Right: Killian O’Reilly; Mark Kelly, Fieldfisher Far right: John Walsh, Miley & Miley; Aisling Walsh, Miley & Miley; Peter McKenna, McKenna Durcan

Left: Micheál Ó Scanaill; Siobhan Hayes, State Claims Agency Far left: Marguerite Bolger; Peter McKenna, McKenna Durcan

54 the Parchment


Autumn 2019 dsba.ie

Left: Laura Horan, Eoin Craven, Davy Lynch Crowe & Morris; Ruth Foy, Tracey Solicitors; Jessica Boyle, Patrick F O’Reilly & Co

Right: Beverly Turner, Taylor & Buchalter; John Doyle; Sophie Moore Far right: Paula Cullinane, Cathal N Young O’Reilly & Co; Cathal Young, Cathal N Young O’Reilly & Co

Left: Mr Justice Bernard Barton; Suzanne McDonnell, McDonnell & Co

Above: John Hennessy, Hennessy & Perrozzi; Alison Martin, DWF Right: Shane Neville, L K Shields and Ciara Smyth, L K Shields

the Parchment 55


DSBA Criminal Law Seminar

The DSBA Criminal Law Committee hosted a CPD seminar on 4th July 2019. The seminar was entitled “Corporate Regulatory and White Collar Crime.� The speakers were Remy Farrell, SC and Shelley Horan, BL. The seminar was chaired by Michael Staines.

Photography: Michael Finn

Left to right: Niamh Kelly, Michael Staines; Anarine McAllister, Michael Staines; Michael Staines, Chair; Ciara Hallinan, Michael Staines

Left: Damien Coffey, Sheehan & Partners; Richard Young, Sheehan & Partners Far left: Ciara Hallinan, Michael Staines; Shelley Horan, BL

Right: Edel Golden, Office of DPP; Niamh Kelly, Michael Staines Far right: Paul Ryan, DSBA; John McNally, Judical Research Office

Left: Michael Staines, Chair; Shelley Horan, BL; Remy Farrell, SC

56 the Parchment


Autumn 2019 dsba.ie Photography: Michael Finn

Left to right: Liam McCabe Joanne Ryan; David Mulligan; Avril Clare; Tom Lawless; Stephanie Kinsella

DSBA Tennis Tournament

The annual DSBA mixed doubles tennis tournament was played at Mount Pleasant Lawn Tennis Club on 20th July 2019. The event involved both competitive and social tennis and there was a barbeque afterwards. A great time was had by all.

Left: Dean Smal; Tamarin Smal; Patricia Lord; Graham Duggan Far left: Mairead Cashman; Richard O’Shea; Kevin O’Higgins; Yvonne Kelly

Right: Harry Mooney; Bernadette Young; Aileen Hughes; Donal O’Kelly Far right: Manus Sweeney; Michelle Linnane; Stephanie Kinsella; Tom Lawless

Left: Graham Duggan; Mairead Cashman; Kevin O’Higgins; Patricia Lord Far left: Michael Prior; Maeve Geary; Lisa O’Reilly; Matthew Kenny

the Parchment 57


DSBA Younger Members Seminar

The DSBA Younger Members’ Committee hosted a property CPD seminar on 18th July 2019. The seminar was entitled “Update on Planning and Property Law.” The speakers included Brendan Slattery, McCann Fitzgerald and Sean O’Sullivan, BL. The event was kindly sponsored by McCann Fitzgerald.

Photography: Michael Finn

Back row left to right: Kevin Ryan; Deirdre Farrell; Greg Benson; Aideen Shanley; Patrick Longworth Front row left to right: Brendan Slattery; Katie Creelman; Sean O’Sullivan

Left: Brendan Slattery; Aoife McCarthy Far left: Vincent Curtis; Padraig Ryan; Caoimhe Ruigrok

Right: Eilish Riordan; Lena Savage Far right: Mairead McShea; Simon Breen

Left: Sean O’Sullivan; Patrick Longworth Far left: Aisling Kiernan; Joanna Bannon

58 the Parchment


Autumn 2019 dsba.ie

Left: Matthew Dempsey; Sadhbh Kelleher; Geoff Curran; Conor Gilheany

Right: Nicola Dowling; Bernard O’Connor Far right: Greg Benson; Deirdre Farrell

Left: Sinead McCarthy; Rachel Turner; Sarah Jane Corbett Far left: Kevin Ryan; Katie O’Riordan

Right: Amanda Rogers; Rodica Nicolaev Far right: Vitalia Sava; Evija Vanaga

the Parchment 59


DSBA Golf Outing

The DSBA Golf Society held its annual Captain’s Prize on 12th September 2019 at Milltown Golf Club. If you would like to join the DSBA Golf Society and enjoy some outings in 2020, contact Maura Smith at the DSBA office on 01 6706089.

Photography: Michael Finn

Left: Emillio Cirillo; James Malone; Robert Ryan; Hugh O’Neill

Left: Bernard Gaughran; Leo Buckley Far left: Alan Connell; Norman Fitzgerald; Gavin O’Flaherty; Sean Greene

Right: Bob Connolly; Martin Moran; Garrett Lally Far right: Angela Cirillo; Mary McAlinden; Yvonne Malone

Left: Robert Ryan Far left: Ben O’Connor; Ollie Shannon; Rob Shannon

60 the Parchment


Autumn 2019 dsba.ie

Left: Yvonne Malone; Christine Scott; Mary McAlinden; Angela Cirillo Far left: Michael Knightly; Ken Knightly; Eamonn Shannon

Right: Eamonn Shannon Far right: Graziano Romeri; Mark Naughton Rumbo; Pat Coady

Left: Hugh O’Neill; Emillio Cirillo; James Malone Far left: Shea Cullen; John Synott

Right: Mary Romeri; Fiona Duffy; Colleen O’Neill Far right: Bob Connolly

the Parchment 61


DSBA Annual Conference Gala Dinner and CPD

The DSBA held a very successful annual conference in Lyon, France from 19th – 22nd September 2019, attended by 110+ delegates and guests. The conference included a CPD seminar held in the offices of the Ordre des Avocats, chaired by DSBA President Greg Ryan and Serge Deygas, incoming President of the Ordre des Avocats Lyon. Speakers included Tim Hughes, Avocat and board member of Lyon Bar’s International Commission; Niall Cawley, solicitor and chair of the DSBA Practice Management Committee and John Barry, Legal Council, Interpol. The conference concluded on the Saturday with its gala dinner in L’Abbaye, the ancestral home of world renowned triple Michelin star chef Paul Bocuse. By all reports a great time was had by all.

Photography: Michael Finn

Left to right: Tim Hughes, solicitor and board member of the Lyon Bar’s International Commission; Serge Deygas incoming President of the Lyon Bar Association; Mr Greg Ryan, President DSBA; Tony O’Sullivan Vice President DSBA and Niall Cawley, speaker and chair of the DSBA Practice Management Committee Left: Geraldine Madigan, Elizabeth Lacy Far left: Margaret O’Connell, Morette Kinsella, John Barry, Speaker, Interpol

Right: Kevin O’Higgins, Paul English, Joan Doran

Left: Rosemary Gantly, Deirdre McDermott, Miriam Delaney Far left: Maura Derivan, Stuart Stein, Mary Swords

62 the Parchment


Autumn 2019 dsba.ie

Right: Liadhan Hassett, Mark Hassett, Catherine Dundon, St John Dundon, Eimear Moloney, Martin Moloney Far right: Greg Ryan, President DSBA; Serge Deygas, incoming President of the Lyon Bar Association; Tim Hughes, solicitor and board member of the Lyon Bar’s International Commission; Tony O’Sullivan, Vice President DSBA Left: Mary Cawley, Liz Dowling, Deirdre Walsh, Morette Kinsella Far left: John Griffin, Olga Griffin, Kerry Stein, Stuart Stein

Right: Fiona Kerins, Moira O’Connor, Clare Downes, Judge Dermot Simms Far right: Veronica Gates, Jane Barron, Deirdre Kennedy, Catherine Lucy Neale, Libby Maguire

Left: Kyran McGinley, Margaret McGinley, Michael Mulcahy, Marie Therese Lacy, John Lacy, Michael O’Doherty

the Parchment 63


DSBA Commercial Law Seminar

The DSBA Commercial Law Committee hosted a CPD seminar on 26th September 2019. The seminar addressed the updated DSBA Specimen Share Purchase Agreement. The speakers were Mark Quealy (William Fry); Rachel Fox (William Fry); Edon Byrnes (DWF); Lisa McEllin (LK Shields). The seminar was chaired by Paul Egan (Mason Hayes and Curran).

Photography: Michael Finn

Left to right: Speakers Paul Ryan; Lisa McEllin; Tom Baker; Paul Egan; Rachel Fox; Mark Quealy; Edon Byrnes

Left: Gordon Judge, Gordon Judge Solicitors; Robert Ryan, Doherty Ryan & Associates; John Darby, Flynn O’Driscoll Far left: Ray Fitzpatrick, Augustus Cullen; Darren Murphy, Neville & Co

Right: Maria O’Brien, Eversheds Sutherland; Alexandra Moore, Denis McSweeney; Richella O’Regan, Denis McSweeney Far right: Kieran Roe, O’Donohoe Solicitors; Tom Halligan, Gaffney Halligan; Conor Dalton, Seamus Maguire

Left: Peter Morrissey, O’Connor Solicitors; Liam Hipwell, Hipwell Solicitors Far left: Joe Kelly, Cannons; Bernard Creavin, Creavin & Co

64 the Parchment


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