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Ireland’s Business to Business Magazine of the Year

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DSBA.IE

D UB LIN SOLICITORS’ B AR ASSOCIATION MAGAZ INE | AUTUMN 2016 | ISSU E 69

EAMONN SHANNON CROSS-EXAMINED 20 MINUTES WITH DAVID HALL

BIG BANG THEORY

New Dawn for Legal Profession

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MITIGATING TITLE LOSSES SOFTER LANDINGS

Carmel Nielsen

+353 (01) 633 8872 +353 (0) 87 299 8088 cnielsen@titlesolv.com www.titlesolv.com Titlesolv, C/O Hannover Re, 4 Custom House Plaza, IFSC, Dublin 1 Titlesolv is the trading name of London & European Title Insurance Services Ltd authorised and regulated by the Financial Conduct Authority

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Autumn 2016 dsba.ie

From the Editor

T

his month sees a seismic change to how our profession will now be regulated following the inception of the Legal Services Regulatory Authority. Its establishment is to be welcomed. In his article, Keith Walsh gives background and context to the new Authority and meets the new board members who are tasked with overseeing a new chapter for both solicitors and barristers. New rules came into force on October 1st which extend the efficient commercial court regime to other types of Irish High Court civil litigation, except personal injuries, and this is expected to make significant improvements. Joe O’Malley examines the new rules in his article in this edition. If applied successfully, the new rules will cut delay, encourage settlements and improve the discipline of trials. The Console scandal has shone a spotlight on charities regulation. Part 4 of the Charities Act, 2009 only came into force last month. Part 4 deals with the protection of charitable organisations and crucially, allows for powers of inspection. In this edition we

interview David Hall who talks abou his Console experience. In her article, solicitor and board member of the Charities Regulator, Katie Cadden provides an overview of recent developments in charity law. With the Workplace Relations Commission (WRC) just after celebrating its first birthday, Loughlin Deegan assesses the new employment law regime one year on from its establishment, while Richard Grogan highlights a statute of limitations issue arising from WRC decisions. We profile the upcoming Law Society election candidates; cross-examine DSBA President Eamonn Shannon; feature an update on two recent High Court Costs cases – one of which has had a very significant knock on effect to the entire legal costs system.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2015/2016

EAMONN SHANNON DSBA President

AINE HYNES Vice President Chair - Mental Health and Capacity Committee

ROBERT RYAN Honorary Treasurer

ELAINE GIVEN Honorary Secretary

GREG RYAN Programmes Director Chair - Commercial Law Committee

DIEGO GALLAGHER Chair - IP and Technology Committee

TONY O’SULLIVAN Chair - Property Committee

JOE O’MALLEY Chairman of the Litigation Commitee

CAROL EAGER Chair of Commercial Law Commitee

SUSAN MARTIN Chair of Family Law Committee

VICKY PIGOT Chair - In-house Lawyers Committee

JOHN O’MALLEY

NIALL CAWLEY

LAURA HORAN Chair of Younger Members’ Committee

PAUL RYAN Chair of In House Committee

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 Julie Doyle Stuart Gilhooly Áine Hynes Geraldine Kelly Killian Morris Gerry O’Connell Kevin O’Higgins Joe O’Malley Keith Walsh COPYRIGHT The Dublin Solicitors’ Bar Association

DSBA OFFICE, T: 01 670 6089 F: 01 670 6090 E: maura@dsba.ie DX 212011 W: www.dsba.ie ADVERTISING ENQUIRIES Donal McDonald T: 01 707 6036

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

WHEN YOU HAVE FINISHED WITH THIS MAGAZINE PLEASE RECYCLE IT.

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Autumn 2016

Contents 6

The Big Bang Theory for the Legal Profession Keith Walsh puts the spotlight on the new Legal Services Regulatory Authority

12

Charity White Knight

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Law Society Elections

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Costs – Some Recent Developments

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Collision Course ahead following EU Judgment?

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The Commodity Trap

The Charity Regulator should be immune from being sued, similar to the regulator of the Central Bank page 12

INTERVIEWED... DAVID HALL

Julie Doyle talks to white knight David Hall about his role as interim chief executive of Console

With the upcoming elections, the Parchment sees what the Dublin based candidates have to say

Greg Ryan looks at two decisions in the area of legal costs handed down recently

Ben Mannering reports on what’s coming down the track following the Vnuk judgment

Flor McCarthy argues that it is time to break free from the commodity trap and differentiate ourselves

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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Autumn 2016 dsba.ie

Contents

REGULAR FEATURES 01 Editor’s Note 04 President’s Message 54 News 58 Photocall 64 Closing Argument

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Cross Examination

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The Workplace Relations Commission One Year On

John Geary interviews DSBA President Eamonn Shannon

Loughlin Deegan assesses how the new WRC is working for litigants and practitioners

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New Lobbying Regime

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In Giving, we Receive Charity Law Update

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New High Court Rules

44

Storm Brews in Data Commissioner Case

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The Ryan Report

Cormac ó Culáin examines new legislative obligations on solicitors

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Katie Cadden provides an overview of recent developments in charity law

Joe O’Malley summaries the new procedures and rules which have just come into effect

Gary Fitzpatrick takes a closer look at the issues involved in the High Court case of Schrems 2

Greg Ryan reports on some recent EU and technology case law

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Eamonn Shannon cross examined the Parchment 3

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Message from the President

Reflecting on a great year

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t’s hard to believe that this will be my last President’s message. It seems like only yesterday that I took over the DSBA chain of office from my friend and colleague, Aaron McKenna – and I am delighted to say that I enjoyed every minute of it. The new legal term is upon us and I hope that you are recharged and reinvigorated after the summer vacation. Some 150 DSBA delegate solicitors and I have just returned from the DSBA annual conference in Washington D.C. which was a fantastic trip and was made all the more memorable as we were in the midst of pre-election fever. Delegates stayed at the Mayflower Hotel on Connecticut Avenue and the itinerary included tours of the Library of Congress and Capitol Hill followed by a lunch hosted by Congressman Mike Doyle. We also spent a very enjoyable evening at a reception hosted by the Irish ambassador to the US, Anne Anderson in her residence. An interesting and informative business session was held in the offices of Skadden, Arps, Slate, Meagher and Flom LLP. Topics discussed included commercial contracts, international litigation and EU relations with the US. I would like to thank Skadden for hosting our business session. I would also like to thank Judge Frank Clarke and DSBA council member John O’Malley who were the DSBA speakers and represented us very well. The trip culminated in a fabulous gala dinner which was held in the Cosmos Club. Thank you to all who attended the conference and made it such a great success. In particular, my sincere thanks to Orla Coyne, Ruadhan and Ivana Killeen, Elaine Given and Áine Hynes for their invaluable support in organising the conference. I would also like to thank our conference sponsors DX Ireland, Webfactory and AvantCard whose support was very much appreciated. On a different note the DSBA has long both proposed and supported reforms of the family law court system and one of the reforms planned is the building of a new family law complex in Hammond Lane, on the Smithfield side of Church St. We recently learned that Dublin City councillors had voted to re-designate part of the area earmarked for this complex as a green area. This re-designation would have destroyed the opportunity to build a better system of family law justice in Dublin. For the past two

months we have, on your behalf, prepared and delivered submissions to Dublin City Council, engaged with political parties and public representatives at all levels with a view to having this decision changed. I am delighted to report that our multiple lobbying efforts, as well as those of the Courts Service, have been successful and on September 23rd, Dublin City Council in passing the development plan for the city reversed their previous decision and have left the family law complex alone. A victory for common sense and for a better way forward for family law. On behalf of the DSBA, I would like to thanks all those involved including past President Keith Walsh, DSBA council members Diego Gallagher and Susan Martin and the DSBA Family Law committee. Please see Keith Walsh’s article on page 24. The Legal Service Regulatory Authority was established on October 1st and while parts 1 and 2 of the Act have commenced; the remaining parts are yet to be commenced. The DSBA taskforce will be monitoring progress closely and we will keep you updated. Keith Walsh’s article and profile of the new Legal Services Regulatory Authority on pages 6-10 is well worth reading.

Our programmes director Greg Ryan, together with our committee chairs have a full and exciting CPD autumn schedule lined up for those of you who have not yet completed your CPD requirements for 2016. I would like to express my thanks and appreciation to all committee members for organising our successful CPD programme and we celebrated our annual committee’s luncheon on October 7th. I would like to remind members that your CPD requirements for 2016 is now 18 hours. The new CPD regulations have imposed further requirements, in particular on sole practitioners, compliance partners and money laundering compliance partners. Greg Ryan’s article on page 56 will update you on your CPD obligations. My sincere thanks also to the officers, council members and past presidents of the DSBA as well as the DSBA administrative staff for all of their support and assistance throughout my year as President and to all our members for your continuing support of the DSBA. Finally, I wish Áine Hynes, incoming President, all the best of luck in her year and hope to see you all at the AGM on Wednesday, October 26th in the Westbury Hotel. Eamonn Shannon, DSBA President

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The Big Bang Theory for the Legal Profession First Board of the Services Regulatory Authority appointed The biggest change to the legal profession since the Attorneys and Solicitors (Ireland) Act of 1866 ended the control by the Kings Inns over the solicitors profession, is due to take place shortly when the new Legal Services Regulatory Authority is established. Keith Walsh looks at the establishment of the new Authority and lets the new board members introduce themselves in their own words The Birth of the Authority The Legal Services Regulation Bill was published on October 4th 2011 as part of the Government’s EU/ IMF commitments. It was comprehensively rewritten by the Government and the Oireachtas and finally enacted four years later on December 30th 2015. The next step was taken on July 19th 2016 – the commencement of most of parts 1 and 2 of the Act which relate to preliminary and general issues and the Legal Services Authority. In order to ensure the independence of the board of the Authority, the board members are nominated to the Government by ten nominating bodies set out in section 9 of the Legal Services Regulation Act 2015. The Law Society is the only nominating body which may nominate two members. The Government must take into account whether the person nominated satisfies them that they have knowledge and expertise in one or more of the following areas: - the provision of legal services, - legal training and education, - competition law and policy, - the maintenance of standards in professions regulated by a statutory body, - dealing with complaints against members of regulated professions, - business and commercial matters, - the needs of consumers of legal services. Once satisfied the nominee meets the criteria, the Government then submits the board member’s name

for approval of both houses of the Oireachtas. A majority of the board must be lay persons and the initial term is either three or four years based on a drawing of lots. At its meeting on July 13th 2016 the Government proposed 11 members to the board of the LSRA and these members were all duly approved by the Oireachtas. Since then the nominee for the Honorable Society of King’s Inns has changed with Nicholas Kearns stepping down from the board and Eileen Barrington, SC, replacing him. The board will be chaired by Don Thornhill. The full list of board members and nominating bodies are: Don Thornhill – Higher Education Authority, Chairman Angela Black - Citizens Information Board Deirdre McHugh - Competition and Consumer Protection Commission Gerry Whyte - Irish Human Rights and Equality Commission Stephen Fitzpatrick - Institute of Legal Costs Accountants Dermot Jewell - Consumers Association of Ireland David Barniville - Bar Council Joan Crawford - Legal Aid Board Eileen Barrington - Honorable Society of King’s Inns (Ms Barrington was recently nominated, so at the time of writing, she was awaiting approval by the Oireachtas) Geraldine Clarke and James MacGuill - Law Society

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Autumn 2016 dsba.ie Keith Walsh is principal of Keith Walsh Solicitors, Crumlin. He is a past president of the DSBA

What Reforms are on the Way David Stanton, TD, described the ‘key levers of reform’ in the 2015 Act as follows: - a new and independent, legal services regulatory authority with responsibility for oversight of both solicitors and barristers. - an independent complaints system dealing with legal professional misconduct. This will provide a first port-of-call for the public in making complaints, independent of the legal professional bodies. There will also be a new and independent legal practitioners’ disciplinary tribunal to adjudicate on serious misconduct in relation to both solicitors and barristers. - an enhanced legal costs regime bolstered by a set of legal costs principles and which places more extensive obligations on both solicitors and barristers to keep clients informed about the details of their legal costs. Separately, the new Office of the Legal Costs Adjudicator will assume the role of the existing Office of the Taxing Master and keep a public register of its legal costs determinations. - a framework for new legal business models. These new business structures will include public consultation and the early introduction of ‘legal partnerships’ between barristers and solicitors or between barristers themselves. Provision is also made for the introduction of ‘limited liability partnerships’. Lawyers will now as a matter of law, be able to avail of the new legal business models and to operate them freely. The more traditional forms of legal practice will, of course, remain available to practitioners but now as a matter of greater choice. A pathway is also provided under the 2015 Act for the introduction on foot of formal research and public consultations, of ‘multi-disciplinary practices’ whereby services can be provided at more competitive cost by legal and non-legal service providers together.

News

- The new Act also opens up other aspects of legal practice. For example, it allows employed or corporate lawyers to act in proceedings on behalf of their employers and for direct access to barristers on non-contentious business. It also allows barristers sharing a premises to advertise themselves as such – these had all been prevented by existing codes. - The aim of opening up these areas is that there will be greater choice in how legal services may be provided and in how they can be accessed by consumers while also on a more competitive basis for all concerned.

What Will Happen Next? - At time of going to print the Minister had announced that the establishment day would be October 1st but the order had not yet been made. So first the Minister must make the establishment order. This is the trigger for all the other action. - Section 20 of the 2015 Act compels the Authority, as soon as practicable after the establishment day to prepare and submit to the Minister a strategic plan for the next three years. The new board will meet in October and presumably put together a plan of action, identify priorities and possibly commission a consultant’s report. A chief executive will have to be recruited as well as other staff for the Authority. A premises will have to be found. - To date the only reform to have been introduced is the establishment of the Authority and the appointment of the board of the Authority. We can expect the phased introduction by commencement order, of the Legal Services Regulation Act, in the coming months or years. In June 2016 the Tanaiste and Minister for Justice and Equality indicated that €1 million had been allocated to the Authority as set-up support. This was provided on a ‘recoupable’ basis. This €1 million will be recouped from the solicitors and barristers who will fully fund the Authority by means of a levy imposed on them.

In June 2016 the Tanaiste and Minister for Justice and Equality indicated that €1 million had been allocated to the Authority as set-up support

MEET THE NEW BOARD MEMBERS OF THE AUTHORITY The board members of the Legal Services Regulatory Authority respond in their own words to the Parchment’s questions

Dr Don Thornhill - Chairman Nominating body: Higher Education Authority Occupation and employer: Consultant, adviser and board member; former civil servant Age: 65+ Legal Experience: Not a lawyer Particular area of interest in the legal service regulatory authority: The public interest Any objectives or aims you or your nominating organisation would like to see achieved by the LSRA:

The functions of the Authority as set down in legislation are to “regulate the provision of legal services by legal practitioners...” and to “ensure the maintenance and improvement of standards in the provision of such services in the State”. I look forward to working objectively and transparently with the members and staff of the Authority towards the furtherance of these objectives, and in doing so to be responsive to the needs and interests of Irish society and of all stakeholders (including members of the professions themselves, their clients and employers) with a view to further enhancing public confidence in the professions and their essential contributions to society. the Parchment 7

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David Barniville, SC Nominating body: Council of the Bar of Ireland Occupation and employer: Selfemployed senior counsel Age: 49 Legal experience: Former chairman of the Bar Council (2014 to 2016); chairman of Irish Rule of Law International; called to the Bar in 1990; became a senior counsel in 2006; in full-time practice as a senior counsel at the Irish Bar; member of the Bar of England and Wales (Middle Temple). Particular area of interest in the legal service regulatory authority: All aspects of the work of the LSRA. Any objectives or aims you or your nominating organisation would like to see achieved by the LSRA: A fair, efficient and cost effective regulatory system that best serves the interests of clients and is not unduly burdensome or expensive.

Angela Black Nominating body: Citizens Information Board Occupation and employer: Chief executive, Citizens Information Board Age: 56 Legal experience: Nominated as a lay person to the Authority (library & ICT professional). Following several years in public library and ICT sectors, she has over 10 years experience in preparation and drafting primary and secondary domestic and EU - retail and investment - financial services legislation. As a senior civil servant, she represented Ireland in EU Council negotiations. Based in Brussels for four years, she worked for the EU Commission on consumer protection in financial services regulation during Ireland’s financial crash, this includes producing and reviewing legislative proposals including EU Commission directives, regulations, decisions, recommendations and communications. On her return to Ireland, she chaired European Parliament negotiations which achieved agreement on the mortgage credit directive during the Irish Presidency in 2013. Particular area of interest in the legal service regulatory authority: Support for all residents of Ireland in obtaining affordable legal aid and advice, particularly in relation to social and financial services difficulties; development of ICT potential within the legal profession. Any objectives or aims you or your nominating organisation would like to see achieved by the LSRA: A rigorous but fair system of regulation of legal services in Ireland.

Geraldine M Clarke Nominating body: Law Society of Ireland Occupation and employer: Geraldine M Clarke is a senior litigation partner at Gleeson McGrath Baldwin Solicitors, 29 Anglesea Street, Dublin 2. She was born in County Sligo and is a graduate of Trinity College Dublin. She qualified as a solicitor in 1978 and practised in general practice in Longford post qualification before joining Gleeson McGrath Baldwin in 1984. She manages the firm’s litigation department and has overall responsibility for the delivery to clients of legal services in this area. During her legal career she has conducted and managed a large volume of cases in all court jurisdictions. These include seminal cases such as Thohy -v- Courtney and others (in which the Supreme Court ruled on the constitutionality of the Statute of Limitations) and the referral to the Supreme Court of the Health Bill 2004. She is a member of the Law Society panel of arbitrators and regularly acts as arbitrator in disputes arising across a broad range of commercial, property and legal issues. Legal experience: Geraldine is a past president of the Dublin Solicitors’ Bar Association and of the Law Society of Ireland. She served as an elected council member of the Law Society for many years and has chaired all its regulatory committees and its litigation and finance committees. She is currently a member of the Solicitors’ Disciplinary Tribunal. She is outgoing chairperson of the Property Services Regulatory Authority (established in 2012 to regulate property services providers including auctioneers and estate agents). She is a past chair of the Professional Ethics Committee of the International Bar Association and is currently an adviser to that committee.

Joan Crawford Nominating body: Legal Aid Board Occupation and employer: Managing solicitor, Legal Aid Board Legal experience: Managing solicitor in Blanchardstown Law Centre. Extensive experience in litigation, general practice, local government law, tax law, probate and family law including child abduction and child care. Practising solicitor for over 20 years. Masters in Public Management, diploma in European Law. Particular area of interest in the LSRA: Policy development for access to legal services for citizens. Innovative methods of alternative dispute resolution processes. Future training of legal professionals and implementation of good governance procedures in the LSRA.

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Autumn 2016 dsba.ie

News

Stephen Fitzpatrick Nominating body: Institute of Legal Costs Accountants Occupation and employer: Legal costs accountant at Peter Fitzpatrick& Co Age: 46 Legal experience: Stephen has been practising in the assessment of legal costs since 2006 specialising in litigation costs. However, in the last ten years he has extended the traditional areas of practice to incorporate advisory work on procurement/ legal tendering and mediation to name but a few. Aside from the role of managing partner of Peter Fitzpatrick Legal Costs Accountants, a significant part of his practice involves ADR in relation to legal costs which involves providing expert determinations and if required, conducting hearings as an alternative to taxation. Stephen is a fellow and secretary of the Institute of Legal Costs Accountants and has been working on general legal costs reforms since 2005. He has represented the Institute of Legal Costs Accountants on all costs reforms to date and appeared and presented at the Haran & Millar working groups in 2005 and 2006. Recently he has been involved in drafting submissions in relation to the Legal Services Regulation Act 2015. Stephen is secretary to the Institute of Legal Costs Accountants. Particular area of interest in the LSRA: Chapters 2 & 10 Any objectives or aims you or your nominating organisation would like to see achieved by the LSRA: Stephen would like to ensure that the Authority gives value for money and that any levies payable by legal practitioners (and in turn the public) are not excessive or unnecessary. (N.B This is a personal view.) He would like to see a superior courts committee designated to improving procedures and efficiencies in legal costs adjudication; the designation of costs judges in the High Court to hear motions to review and better formal communications with all professions and the Courts Service.

Dermott Jewell Nominating body: Consumers Association of Ireland (CAI) Occupation and employer: Policy and council advisor for the Consumers’ Association of Ireland (CAI) Legal experience: A member of the Chartered Institute of Arbitration, Irish Branch, (CIArb) with accreditations in employment investigation and mediation. He is a member of the Irish Institute of Mediation. Currently he is chairperson of the Financial Services Ombudsman Council, chairman of the European Consumer Centre and Ireland’s representative on the European Consumer Consultative Group (ECCG) of the European Commission. Any objectives or aims you or your nominating organisation would like to see achieved by the LSRA: It will be important that the Legal Services Regulatory Authority (LSRA) is brought to a functioning and independent reality with consideration of the need for best practice, governance, transparency and oversight of the highest calibre. As an agent for change this will be essential to ensure it fulfills the needs of all who will rely upon its services and will form the bedrock upon which trust and respect will be established and retained with all stakeholders.

Deirdre McHugh Nominating body: Competition and Consumer Protection Commission Occupation and employer: Head of Advocacy, Competition and Consumer Protection Commission Legal experience: Lay member of the Authority; postgraduate diploma in EU competition law, King’s College, London 2015. Particular area of interest in the legal service regulatory authority: Wide ranging experience in competition and consumer issues which will resonate with many areas of the Authority’s work. Any objectives or aims you or your nominating organisation would like to see achieved by the LSRA: With the establishment of the LSRA the legal profession will, for the first time, be regulated by an independent body charged with promoting the public interest, protecting consumer interests and promoting competition. We must do this while also supporting the proper administration of justice and encouraging an independent and effective legal profession. I look forward to contributing towards the successful delivery of this very challenging mandate.

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James MacGuill Nominating body: Law Society of Ireland Occupation and employer: Selfemployed solicitor in private practice Age: 53 Legal experience: Solicitor in general practice for 30 years. Focus now is mainly on public law litigation but in the past, I have practised in the main traditional areas including to the surprise of many - conveyancing, probate and family law. I also now do some EU law. Particular area of interest in the legal service regulatory authority: To help in striking the right balance between public protection, maintenance and development of high professional standards without creating an overly elaborate and overly expensive quango with unrealistic and excessive expectations of what it is reasonable to expect from legal practitioners. Any objectives or aims you or your nominating organisation would like to see achieved by the LSRA: The Law Society has always been of the view that what is in the public interest is also in the profession’s interest. I believe if we seek to ensure that clients are well and properly served, then LSRA will earn the confidence and respect of all. It is critical that the LSRA demonstrates that it will ensure fair and balanced regulation if it is to secure the ongoing confidence of all stakeholders - being the public, clients and practitioners. All of the objectives of the Authority, as set out in Section 13 (4) of the Act, are important. Whether ‘protecting and promoting the public interest’ or ‘encouraging an independent, strong and effective legal profession’ or any of the other four - none should be lost sight of by the Authority’s practitioners.

Gerry Whyte Age: 57 Nominating body: Irish Human Rights and Equality Commission Occupation and employer: Academic lawyer employed by Trinity College Dublin Legal experience: Academic lawyer with interests in constitutional law, public interest law, social welfare law and labour law. Particular area of interest in the legal service regulatory authority: Education and training of legal practitioners and promoting public awareness of legal services. Any objectives or aims you or your nominating organisation would like to see achieved by the LSRA: Review of admissions requirements of professional bodies and enhancing public awareness of the availability of legal services.

Eileen Barrington Nominating body: The Honourable Society of King’s Inns

We did not have an opportunity to speak to Eileen Barrington as her nomination came on the eve of going to print.

PARCHMENT TO ADVERTISE HERE Contact Donal McDonald on donal@256media.ie

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David Hall of Console

I think that any organisation where there is not appropriate governance in place and where a limited few control the organisation is very dangerous

Charity White Knight Part 4 of the Charities Act, 2009 came into force on September 5th 2016. Part 4 deals with the protection of charitable organisations and includes, amongst its eleven sections, the ability to appoint an inspector to investigate the affairs of a charitable organisation. It was unfortunate that this legislative power was not available recently when the Console scandal erupted. Julie Doyle talks to white knight David Hall about his role as interim chief executive of Console

David, you had been active in the charity sector for years setting up the Irish branch of the Make a Wish Foundation and you also served as chairman of the Marie Keating Foundation for a decade, but you had no previous link with Console. How did the appointment of interim CEO come about? I was asked by the lawyers acting on behalf of Console to allow my name go forward to carry out a review of the corporate governance of Console and the issues which were raised by Prime Time Investigates and also a report being completed by the HSE.

As I began this task it became clear that the three remaining directors had never attended any board meeting. They had never had any financial responsibility within the charity and had no control. In addition, with Mr Kelly having supposedly resigned, this meant that there was no-one running the charity and protecting the vulnerable service users. There were 350 people in active counselling at that time. The remaining directors asked me to act as the CEO to allow the services and the company to be protected and to seek appropriate injunctions to do so. What was your initial reaction on being

appointed? Did you have any idea of what lay ahead? I had no idea. My initial role was to make corporate governance recommendations and to review allegations made by Prime Time and a HSE report. This should have been a straightforward job. As part of your role you sought permission from the High Court to break a lock on a storage unit that the charity’s under fire founder, Paul Kelly allegedly rented a few days after financial foul play at the organisation. How did this information come to your attention?

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Autumn 2016 dsba.ie Julie Doyle is an associate solicitor at Beachamps. She is a member of the Parchment committee

Interview

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The public trust must be restored as quickly as possible to protect the sector and services. Fast, reliable investigations must take place where there is cause for concern I had completed an interview on RTE Radio One’s Liveline programme with Joe Duffy on the Friday. A listener called their local radio station in Kilkenny and said they had seen Mr and Mrs Kelly at a lock-up. This gentleman called the Console office and I spoke with him on the Monday. I then made my own enquiries and sought an order from the High Court to access the unit in Naas. How long did the full investigation of affairs take until you concluded your final report and did any difficulties hinder your investigation? It became very clear from the first day that many creditors were owed money and that staff were owed money. The Prime Time programme caused creditors and staff to be understandably concerned and as the days

went on, more and more creditors contacted me seeking payment. There was a delicate balance given I did not have the books and records, and multiple High Court orders were required to get these to establish a more complete picture. On the Tuesday after breaking into the unit in Naas it started to become clear that there was no way back. The lack of documents and lack of access to bank accounts until I obtained the High Court orders caused significant difficulties in finding out where the charity stood. Your investigative report recommended the liquidation of Console and as a result the services that Console offered were agreed to be transferred to Pieta House. How did this agreement come about? As the weeks went by it was becoming

clearer that the charity was insolvent. An ongoing challenge was keeping the services open given their importance. The staff ensured this happened. On the Tuesday after breaking into the lock-up unit it was clear to me we had a problem. I phoned Dr Eddie Murphy, the clinical psychologist and he suggested I call Brian Higgins, the CEO of Pieta House. I phoned him and met him at 11pm in the Aisling Hotel to explain my concerns and to try and establish a backup for the services. Extensive discussions took place and Minister Simon Harris and Minister Helen McEntee were involved and a meeting of stakeholders then took place. Negotiations took a number of days and eventually a plan was agreed. How do you think such an abuse of position was permitted to occur? I think that any organisation where there is not appropriate governance in place and where a limited few control the organisation, is very dangerous. It becomes even more dangerous where the same limited persons control the funds. What guiding principles do you think are required for charitable fundraising? I think the guiding principles published by Fundraising Ireland, now known as the Charities Institute Ireland, are required. There is a massive responsibility on charities and trust required from donors to charities and it's imperative this trust is protected. What additional powers do you think the Charities Regulator should be given? I think that given recent events in the charitable sector and the fact that this does not represent the sector as a whole, the regulator should have wide-ranging powers for example, powers to investigate and power to take control of a charity especially when there are frontline services being provided. The Charity Regulator should be immune from being sued similar to the regulator of the Central Bank. How do you think trust can be restored in the charities sector? This is a critical task. The sector has been rocked by recent scandals and the public are very sceptical. The charities sector failed to come out when the Console story was breaking to explain to the public how they could assess a charity prior to donating. The public trust must be restored as quickly as possible to protect the sector and services. Fast, reliable investigations must take place where there is cause for concern. P

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Law Society Elections

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ctober is election time for the Law Society Council and the Parchment is supporting all Dublin-based candidates by publishing their candidature in the upcoming election. Each candidate was asked to furnish 250 words on either (a) why they should be elected to the Law Society or (b) what they will do about the problems facing the profession. Below is what we received from each candidate. As this is the Parchment, we cannot let the occasion

John Glynn I believe my re-election to the Law Society is worthy of consideration inter alia on the following grounds: 1. I have wide experience as a solicitor and managing partner. There are very few situations I have not come across. I qualified in 1968 and have acted as managing partner of John Glynn & Company since 1972. I believe this experience is helpful. 2. I served the DSBA for many years and my positions included honorary secretary, treasurer, vice president and president. I also headed the Technology committee of the DSBA for over ten years. 3. In my capacity as council member for the Law Society I have a good attendance and representative record. On a monthly basis I write to all Law Society members and address their correspondence. I raise issues at council level where appropriate and deal with queries both written and verbal on an ongoing basis. 4. I am currently chairman of Guidance and Ethics and I believe I have made a good contribution to this committee. The Guidance and Ethics” committee helps in many rewarding ways to include a very active helpline. We have also promoted the objectives of our committee and the good work of the Law Society by assisting at bar association seminars to include the DSBA, Mayo, Waterford and Southern Law. Before year end we expect to visit Galway, Wicklow and West Cork.

pass without a plug for former DSBA Presidents John Glynn and Michael Quinlan. Also running for re-election are Michelle Ní Longain (ByrneWallace), Deirdre O’Sullivan (Jazz Pharmaceuticals) and Dan O’Connor (Arthur Cox). First-time candidates running are Liam Quirke (Matheson) and Carina Davison (partners at law). There is an excellent field of candidates to choose from in this year’s Law Society’s elections. Make up your own minds, support the DSBA and the Dublin candidates and ensure that you vote.

Michelle Ni Longain Having grown up in Donegal, I qualified as a solicitor in Northern Ireland in 1994. I practiced in Northern Ireland and in England for five years before returning to Ireland and joining the Law Society of Ireland in 1999. I became an elected member of the Law Society Council in 2004, and have served on the Council for five terms. I am again seeking your support as a candidate for election to the Council so I can continue to represent you and work on your behalf. I have chaired the Law Society’s Finance and Education Committees, Skillnet and Finuas Networks, and served on committees ranging from Complaints and Client Relations to PR. I was a member of the Law Society’s Task Force on the Legal Services Regulation Bill, which involved addressing fundamental issues about the future of our profession and its core values. We will continue to have challenging times ahead, from sole practitioners to the largest firms, across all areas of the country, and in all practice areas. The market for legal services is increasingly competitive and Brexit may add to this. Very soon, the Legal Services Regulation Act will begin to impact on the way in which we practice as solicitors In this new environment, the Law Society must remain focused on the interests of members, clients and the public generally, to ensure the future of the profession and its members. I ask you for the opportunity to serve a further term on the Law Society Council.

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Autumn 2016 dsba.ie

Elections

Michael Quinlan Michael Quinlan is a former president of the DSBA and has been on council since 2001 as an elected member and was initially a nominee of the DSBA. He is a member of the DSBA. He has served on numerous committees of the Society and has served as junior vice-president. He has chaired the Regulation of Practice committee and the taskforce on the Legal Services Regulation Bill. He is currently a vice-chairman of the Complaints and Client Relations committee of the Society and chairs the Professional Indemnity Insurance committee. As the Legal Services Act has commenced and is in the early stages of its existence, Michael encourages members of the DSBA and the entire profession to appraise themselves especially of the new costs regime and rules. Time costing will become prevalent in justifying fees. The DSBA and the Law Society have worked together in the past and have collaborated in many projects. Michael believes that this is in the best interests of the profession and he will encourage greater use of this collaboration in the future. Michael believes there is now a greater need for collegiality – a hallmark of the DSBA. Michael is committing his time for another two years on your behalf if re-elected to the council. He is committed to working with all solicitors from small and large practices to in-house colleagues. He is always contactable to give counsel and guidance and would be very grateful for DSBA members’ votes.

Claire Ryan Colleagues, my name is Claire Ryan and I am looking for your vote in the forthcoming Law Society council elections. My first two-year term is coming to an end and for the second time I ask for your vote. It has certainly been a very busy two years but I am willing to do it all over again. Why should you vote to re-elect me? I know that I may not be the most well-known person running for re-election or the most popular but I believe that I am and can be someone you can trust to use my best endeavours to represent the views and concerns of the profession. My aim is to use my mandate to listen and speak for you as your voice in the council chamber in a fair, open and honest manner. I am not afraid to use my mandate to put forward arguments for and against issues discussed at council level. I believe I can continue to make a valuable contribution to the future direction of the Law Society. Over 20 members of the profession have thrown their hats into the ring this coming October and their canvassing literature will fall into your inbox soon, including my own. I want to use this forum to ask you to use your democratic right to vote and return ballot papers to the Law Society. I would be grateful for the privilege of serving you as your council member for two more years.

Imelda Reynolds Our profession will undergo significant changes in the coming years. In addition to broad business issues impacting all organisations, the implementation of the Legal Services Regulation Act 2015 means there are challenges ahead, but also opportunities for the profession to address the perceived need for greater transparency and improve engagement with its stakeholders. The voices around the council table speaking for the membership must be representative of the diversity of the profession so as to bring appropriate balance to the debate. The council should also be ambitious for its members. Within this context, it is timely to refocus on how effective and relevant the Society is as a voice for its members, and to consider whether the governance, structure and processes are proportionate and fit for purpose. I was managing partner of Beauchamps for seven years and now serve as chair. I believe my experience as a practitioner and leader in Beauchamps has given me a comprehensive understanding of the profession and its challenges. I also believe in making a contribution, and have served on the Society’s Regulation of Practice committee for a number of years. Outside of the profession, I am a member of the governing body of DIT and chairperson of the Aquaculture Licence Appeals Board. I was a council member of Dublin Chamber of Commerce for over ten years and served as the chamber president. I would like to bring my experience from these roles to bear in representing the profession on the Law Society council, working to address the challenges and opportunities at the core of our profession.

Also running for Election

Carina Davison This October, Law Society members have the opportunity to vote for their colleagues to take up to 15 seats on the council of the Law Society. I am running for election as a newly qualified solicitor having been admitted to the Roll in January 2016. I believe the council, as any representative body, should reflect the full range of experience and perspective of its members. I will bring fresh views on the challenges facing practising solicitors of my generation in terms of education, training and integration. This is a time of immense change for the profession given the Legal Services Regulation Act and I believe given my recent training, I am representative of the members of the society who will have to live and practise under the new Act for the years to come. I practise in the areas of criminal and family law in the main, areas of particular community interest and ongoing scrutiny and development. My passion is to work for and on behalf of my fellow solicitors to continually improve and enhance the systems and processes which we maintain in the interests of our profession and our clients. I would welcome support from everyone who shares these objectives with me.

Dan O’Connor

Deirdre O’Sullivan

Liam Quirke the Parchment 17

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Richard Grogan is principal of Richard Grogan & Associates, solicitors and registered tax consultants

Employment Law

Time Limit for Appeals to the Labour Court Richard Grogan examines the case of Aiseiri Limited -and- Mary McCormack PTW/16/3 decision PTD163 concerning the issue of an appeal which was lodged 43 days from the date of the Rights Commissioner’s decision

Because of the strict time limits it is important for the WRC to get these procedures properly in place to make sure that decisions issue on the day that they are dated

T

he court in this case considered the provisions of Section 18 (h) Interpretation Act, 2005. The court also looked at the High Court case of McGuinness -v- Armstrong Patents Limited [1980] 1IR 289 in which case McMahon J held that in enacting Section 11 (h) the Oireachtas had opted for a different approach than that of the well-established law in England. Whereby when a period of time prescribed by statute is defined as a period “from” a particular event, the day of the event is excluded in computing the period. In that judgment he pointed out that he would have adopted this construction but he did not see how it could be done. The court held that as the appeal had been lodged on the 43rd day from the date of the Rights Commissioner’s decision following Section 44 of the Workplace Relations Act, as the appeal had to be lodged not later than 42 days from the date the decision concerned, the appeal in this particular case was out of time. This is an important judgement of the court and confirms the very strict time limits. Currently there have been some issues arising in relation to decisions issuing from the WRC. We are aware of cases where the date of the decision significantly predates the date that the decision is received and predates by a significant length of time the actual covering letter sending out the said decision. This may give rise to difficulties and potential applications to the court for extension of time in exceptional circumstances going forward. It is hoped that the procedures in the WRC will be rectified to ensure that decisions issue in a timely manner after the date that they are dated. Our understanding of the procedures in the WRC is that the decision is submitted by the Adjudication Officer but is not dated.

The document is then dated and is sent out. The practice in the LRC was that the day that the decision was sent out, was the day it was dated. What appears to be happening in the WRC is that documents are dated and then sent out. We have had occasion where we have received a decision which was dated after the date that we have actually received it and which is dated after the date of the covering letter. Because of the strict time limits it is important for the WRC to get these procedures properly in place to make sure that decisions issue on the day that they are dated, but in addition unfortunately, practitioners are now going to have to make sure that they double check dates of decisions which are received to take account of the very strict time limits. If a colleague gets a decision late they may not have an opportunity to get a client in to sign the appeal form. In such circumstances it would be our view that the solicitors can sign the appeal form and if there was significant issue on times, that to do a covering letter and even a handwritten letter to the Labour Court attaching the decision and stating: “The employer/employee wishes to appeal the decision in full”. This has been accepted by the Labour Court in the past. If this is to be done it would be useful to make sure that the full appeal documentation is completed and sent in as soon as possible thereafter and, if possible, writing to the Labour Court to explain what has happened so that they are aware. It is useful now also in employment cases because of this issue arising to make sure that the solicitor has an appropriate power of attorney or authorisation from their client to sign any appeal documentation on their behalf. Such an authorisation can be included in an engagement letter. P

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Costs

– Some Recent Developments Greg Ryan looks at two recent decisions in the area of legal costs handed down in June and July of this year

T

he first decision is the decision of Mr Justice Cregan in the Court of Appeal in the case of Isabelle Sheehan (an infant suing by her mother and next friend, Catherine Sheehan) -v- David Corr, delivered on June 10th, 2016. The case involved medical negligence proceedings by the plaintiff against the defendant which was eventually settled in the sum of €1.9m on an interim basis and a full capital value of €8m. In the bill of costs an instruction fee of €485,000 was sought and ultimately the Taxing Master allowed €276,000. The taxation process itself was subject to criticism by the court, whereas the hearing of the assessment for catastrophic injuries only took five days, the hearings for the costs took 12 days and the judge commented that it was hard to avoid the conclusion that there must be something wrong with the taxation process that it would take so long to resolve such a dispute. The review was initially dismissed in the High Court before the President, and a number of grounds of appeal were advanced, most importantly in relation to the issue of time recording and billing. Mr Justice Cregan examined the requirements for a valid bill of costs and specifically Order 99 Rule 29 (5) of the rules of the superior courts which sets out the legal requirements for bills of costs and provides for the seven columns necessary for the bill to constitute a valid bill of costs. The judge commented that in any rational, fair and transparent system for drawing up a bill of costs, one would expect to see the date on which the professional service was given, the particulars of the service and the charge for such service. And that a client would want to know on what date an activity was performed, what was that activity, how long did it take and how much did it cost. He commented that the legal costs accountants have lost sight of these rules over the last number of years and in particular, in this case the bill of costs ran to 170 pages and epitomised the evolved practice which was in effect “how things are done” by the legal costs accountants. Dates for some but not all of the services, were given. Some particulars of professional services are given but not all and most importantly, the professional charge in respect of each of the items of professional service were not given at all.

He notably criticised the bill in that it omitted any reference to the hours spent on the case in the last few months, even though the plaintiff ’s solicitor had kept detailed time recording notes before the trial. And while this information was available to the costs accountants, surprisingly it was never used. He also criticised the bill with regard to its inordinate length and prolix nature. Pages 21 to 43 of the bill essentially recited the statement of claim in full and pages 62 to 67 then set out the defence in full. In other words, 27 pages (almost a third of the bill) set out matters which did not require to be in any bill of costs and the bill was unnecessarily repetitious. He also criticised the bill in that some of the items appeared to completely lack reality. For example, a letter prior to the actual proceedings was priced at 85 cent even though it must have taken a number of hours to prepare. The time and work needed to file an affidavit was billed at €1.28, although it clearly took much more time than that and copying an affidavit was billed at 50 cent. His final and most pointed criticism was the first mention of any instruction fee was almost 100 pages into the bill where it was stated to be €485,000, which seemed to emerge out of the blue and was not based on anything which had gone before, apart from the amount of the activities. He concluded that the rolling up of all the items into a global instruction fee seemed to be to obfuscate rather than clarify the work that had been done. As a result of this judgment, the Taxing Master’s office is now requiring bills of costs to include timesheets or estimates of timesheet for the assistance of the Taxing Master when adjudicating on bills of costs. Most case management systems do include some form of time recording system and practitioners are strongly advised if they have not already done so, to begin time recording. It should be noted that the case has now been appealed to the Supreme Court. The second decision was in a case entitled Larry Burke, trading as Burke Hunt & Co, Solicitors -v- Maureen Lawless, a case in which this author represented the plaintiff solicitor. The plaintiff was engaged in 2010 to institute proceedings against an auctioneer, which said proceedings were eventually

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Autumn 2016 dsba.ie Greg Ryan is principal of Greg Ryan Solicitors. He is programme director of the DSBA

settled. The legal bill totalled approximately €175,000 and a comprehensive fee note issued to the defendant in or about November, 2011. Ms Lawless raised a number of defences to having to pay the bill, but the judge concluded that she had no defence to the application for summary judgement. Most noteworthy, the defendant claimed a special circumstance which would deny the application for summary judgment, namely that on November 28th 2011, the plaintiff solicitor, in a letter which was described by the judge as somewhat understandably frustrated in tone, indicated that if the defendant would not pay her fees, that he would proceed to taxation. Instead of going to taxation, he proceeded instead to issue proceedings and to seek summary judgment for the amount that he contended to be and which the court now found to be due and owing. The judge found this not to be a special circumstance and saw the letter to be nothing more than a standard “pay up or else” type letter that many service providers would send. He held that this was not a commitment binding in law or equity, that the solicitor would necessarily proceed to taxation before coming to court. He went on to say that

Costs

The Taxing Master’s office is now requiring bills of costs to include timesheets or estimates of timesheet for the assistance of the Taxing Master when adjudicating on bills of costs this was in effect a threat to “go legal”, and that was exactly what the solicitor had done. The solicitor was commended for his considerable forbearance by his part in the interim as well as very real efforts by him to arrive at some form of amicable arrangement. The judge therefore granted the application for summary judgment and declined to set the matter to taxation. P the Parchment 21

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Collision Course ahead following EU Judgment

This year has seen a lot of hyperbole regarding a 2014 opinion of the European Court of Justice in respect of motor insurance and its impact on motorsports in Ireland. The matter has the motoring and indeed, insurance industry “scrambling” to lobby MEPs for amendments to the forthcoming sixth motor insurance directives. Ben Mannering reports on the what’s coming down the track Slovenia Deux Points In the case of Damijan Vnuk v Zabarovalnica Trigalev (C-162/13) the Court of Justice of the European Union (CJEU), in the matter referred to it by the Slovenian Supreme Court, considered the meaning of two articles of the first motor insurance directive (72/166/EEC). By way of background, the plaintiff commenced an action for compensation due to an injury sustained in his native Slovenia following an accident on August 13th 2007 whilst working as a farmhand. He suffered injury when he was knocked from a ladder whilst storing bales of hay in a barn. He was knocked from the ladder by a trailer attached to a tractor which was reversing on private property. Whilst the damages sought (€15,944.10) may seem slight in an Irish context for a referral to Europe, the matter made its way to the European Court of Justice following two failed attempts in the Slovenian courts. The Slovenian courts stated that compulsory insurance in respect of a motor vehicle covered such damage which arose whilst the tractor was being used as a means of transport, but not as a propulsion device. The Slovenian appeal court made a reference to the CJEU to determine whether firstly, the vehicle was compulsorily insurable and secondly, whether the use of the vehicle was within the meaning of the directive. Basically if the “vehicle” was being used in a private, as opposed to public place, did the compulsory insurance regime still apply?

Vehicle Under Article 1(1) of directive 72/166, the directive applies to ‘any motor vehicle intended for travel on land and propelled by mechanical power, but not running on rails, and any trailer, whether or not coupled’. The tractor which caused the accident was classified as such a ‘vehicle’.

This firstly has implications as it extends the traditional view of a vehicle in an Irish context. Ireland made representations before the CJEU in respect of, inter alia, farmyard vehicles but these representations were unsuccessful.

Use Article 3(1) states “each member state shall, subject to article 4, take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance. The extent of liability covered and the terms and conditions of the cover shall be determined on the basis of these measures”. Thus, the question was whether the article was to be interpreted as meaning the “use of vehicles” cover the circumstances. Use itself is not defined in the directive. Different countries legislative provisions have different meanings as to the term use, but also to what “use” means linguistically in each country. Advocate General Mengozzi had issued an opinion which preferred a broad interpretation of the term “use of vehicle” and it was to be interpreted as meaning that the manoeuvre of a tractor in a farmyard to back its trailer into a barn must be regarded as falling within that scope. Hence this would not require the vehicle to be on a road or in a public place. Various government authorities including Ireland, argued that the mandatory insurance obligations related only to road use. The CJEU, perhaps unsurprisingly, preferred the AG’s view.

What Does This Mean? The judgment in itself puts Irish legislation on a collision course - similar to Mr Vanuk’s trajectory with the trailer - with the CJEU. The Road Traffic Act 1961 provides that unlimited third party motor insurance is

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Autumn 2016 dsba.ie Ben Mannering is a solicitor/claims manager with the State Claims Agency

Litigation

The tractor which knocked Mr Vnuk over could have a significant knock-on effect in Ireland and across Europe following the ECJ ruling

generally compulsory where vehicles are being used on a public road or place and also define clearly the extent of vehicles and their use. By way of background motorsport in the EU provides over 100,000 jobs and generates €25bn in revenue. In an Irish context there are approximately 300 licensed events annually. Insurance cover, whilst prudent, is not mandatory. Specifically in the context of motorsports where vehicles are not necessarily adapted for road use and activities traditionally are carried off road, the compulsory motor insurance regime now applies. The judgment also expands the definition of vehicles to that set out in road traffic law. The traditional definition may be too narrow and it seems arguable that vehicles including forklifts, construction plant, Segways or even electric bicycles, which are solely in private property, are also the subject of the EU compulsory motor insurance regime.

More MIBI Claims? The Road Traffic Act currently in place appears to be at a variance to the Vnuk decision. Thus has Ireland failed to properly implement the first motor

insurance directive? If so a claimant can seek redress for failing to properly implement the 1972 motor insurance directive in line with the Francovich principles. To recap, Francovich v Italy (1991) C6/90 ruled that damages can be awarded where an individual has sustained loss caused by a member state’s infringement of a directive. The decision itself has set out the various criteria to succeed. In the event that unlimited third party insurance is not held by a motorsport participant or organiser or farmer, who deals with any claims which may arise? This may fall back to the Motor Insurers’ Bureau of Ireland (MIBI) as insurer of last resort. We have already seen the controversy regarding Setanta Insurance which is currently under appeal, where the MIBI were held liable for uninsured losses arising out of the Setanta liquidation. A potential implication of the Vnuk decision may result in further “uninsured” cases where the MIBI may have to become involved as insurer of last resort if adequate motor insurance is not in place. Does this mean a further premium rise for consumers? P The views in this article are personal and do not reflect the views of the National Treasury Management Agency

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Keith Walsh is principal of Keith Walsh Solicitors, Crumlin. He is vice chair of the Law Society Child & Family Law committee and a former president of the DSBA

News

DSBA Helps to Win the Battle to Save New Family law complex in Hammond Lane Keith Walsh outlines how a campaign for improved facilities for family law court users has finally paid dividends

Pressing Need for a New Family Law Structure

This is a triumph for family lawyers and more importantly, for the users of the family law courts who can look forward to a new system which will be fit for purpose

In 2012 the Chief Justice Susan Denham referred to the need for the establishment of specialist family courts and said ‘over the last 20 years there has been, and there continues to be, a growth in the volume and complexity of family cases. These cases require specialist knowledge and skill in a specialist family court structure, whereby issues arising in family law cases could be addressed in a holistic manner, as appropriate, including access to mediation and to other forms of support’. The Law Society of Ireland in its submission to the Department of Justice in 2014 called for a specialist family court system which included alternative dispute resolution mechanisms and supports for those using the family court system. The 2015 Report of the Courts Service states that it was working with the Department of Justice and Equality on drafting heads of a bill for a new family court system with the input of all relevant stakeholders. The Law Society, the Dublin Solicitors’ Bar Association and the Family Lawyers’ Association have been calling for better facilities for court users of family law and child cases for over 20 years and have been involved in providing detailed submissions and feedback to the court services based on their own experiences and that of their clients.

Good News then Bad News Following this outbreak of consensus in relation to the need for a specialist family law court system, it was announced by the Government in December 2014 that a new state-of-the-art court and dispute resolution complex which would act as a one-stop shop for all family law matters, would be built on the Hammond Lane site, on the Smithfield side of Church Street. The ongoing relocation of the childcare courts from Dolphin House to the Bridewell was designed as a temporary measure pending the completion of the Hammond Lane project which has a budget of €40 million.

At the end of July 2016, the DSBA learned that Dublin City councillors had just voted to re-designate part of the Hammond Lane site as a park. This would have destroyed the proposed new family law complex which was due to house not only the family law courts and offices but equally importantly, was intended to provide a one-stop shop for family law disputes by also facilitating the legal aid board, mediation services, domestic violence supports, facilities for children and hearing the voice of the child and other ancillary services.

A Victory for Court Users The DSBA along with the Court Services delivered detailed submissions to Dublin City Council. The DSBA also undertook a concerted lobbying campaign to highlight to Dublin City councillors and all political parties the loss of opportunity to fix some of the defects in the family law system that would result from the redesignation of the Hammond Lane site. This concerted campaign has taken the considerable time and involved the focussed and sustained effort of DSBA members, its council and President Eamonn Shannon with the help of Kevin O’Higgins, Josepha Madigan T.D., Senator Catherine Ardagh and many Dublin City councillors over the last two months but thankfully the campaign has succeeded. At their meeting to finalise the Dublin City Development Plan on September 23rd, the Dublin City councillors voted to reverse their earlier decision and to permit the Hammond Lane Family Law Complex to proceed without reducing the size of the site. This is a triumph for family lawyers and more importantly, for the users of the family law courts who can look forward to a new system which will be fit for purpose. The Hammond Lane complex which will be funded by a public/private partnership is due to open in 2020. P

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Flor McCarthy is managing partner of McCarthy & Co, solicitors and is author of The Solicitor’s Guide to Marketing and Growing a Business: How to Turn Your Legal Practice into a Financial Success, www.thesolicitorsguide.com

The Commodity Trap Commoditisation is often used to refer to certain private client legal services; either with dread or disdain, depending largely on whether your income is dependent on the practice area in question. Flor McCarthy argues that it is time to break free from the commodity trap and differentiate ourselves

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iven that the recent Law Society Managing Partner Survey identified that significant numbers of Irish firms remain heavily dependent on the three traditional private client practice areas of conveyancing, probate and personal injury work, it is worth looking a little deeper at how some may become commoditised. For instance, the idea that commoditisation is a fact of life in domestic conveyancing tends to be a received wisdom; but does it really have to be like that? Commodities are things that are devoid of uniqueness, with nothing to differentiate one unit of a commodity from another. Motor fuel is a classic commodity, the only differentiating factor being the price at the pump. In its raw form so is coffee. Yet here we can see how the concept starts to unravel and lose its usefulness. Because, while coffee is a commodity, in the marketplace it can vary from a humble cup of instant to the exclusive Kopi Luwak, where the coffee beans are digested by an Indonesian cat, extracted from its faeces and sold at up to $80 a cup! The moral is that there’s a lot more to what might at first glance be commodities than the underlying

products themselves. And if this is the case with physical commodities, it is questionable whether the word can helpfully be applied to professional services at all. So, is that it? A question of widespread intellectual laziness; what are described as commoditised services are not in fact commodities and therefore the whole thing is just a case of inaccurate labelling? Well, not quite, because for those of us selling such services into the marketplace, the problem is with how the services are perceived, both by consumers and solicitors. Because the commodity trap is one in which we ensnare ourselves. If we allow ourselves to think of a particular service as commoditised, this is a selflimiting belief that will perpetuate itself and become adopted by the marketplace. Such thinking invariably focuses on features, the things involved in providing the service. In conveyancing, when challenged on price, we tend to think about what’s involved in doing the job: the details, the complexity. But the consumer doesn’t care. When I go for surgery, I am not interested in what goes on while I’m unconscious. I don’t want to know what bits they cut, pull or probe; I’m assuming the

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Autumn 2016 dsba.ie

Practice Management

experts that I’ve retained to do the job know all that very well indeed, and I’m assuming this as a given in their qualification to do the job in the first place. So, ability to do the job, basic competence, while by no means always present, is assumed by the market. Therefore, if the task at hand is one that one could reasonably expect to be within the competence of any general practitioner the commodity rot sets in. If you can convey houses, and every other provider in your market can convey houses, and all I’m interested in are the keys to my house at the end of the process, then the commodity mindset assumes that the only question that’s important to me is, which of you is going to get me into my house for the cheapest price. You may explain to me the nature of the title to the property or some other complicating aspects of the transaction as factors in the price, but ultimately all others are going to have to deal with the same issues. So these things alone do not give me any grounds for differentiating you from everyone else. And price is a terrible differentiator, if the only competitive tool you have is price, then you may be justified in thinking of yourself as commoditised. But to allow this to happen is an entirely self-inflicted wound. The answer lies in looking beyond the features of what you do - the actual conveyancing or whatever it may be, because to a large extent this is, or should be, standardised. Everyone who practises in the field should do so to the standard of a competent practitioner, to fail to do so would be negligent. But we all know that because someone can meet the bare minimum required not to get sued in legal service or in any other walk of life, by no means guarantees a satisfactory outcome for the consumer. And here is where we have the opportunity to transcend commoditisation.

The first way is with additional expertise or specialism. It may not always be required but, where it is, sensible people will see value in dealing with an expert. But even where additional legal expertise is not required and likely to be valued, specialist practical knowledge around how to get the job done efficiently and effectively can be a big differentiator. Then there is the customer experience. Do their calls get answered? Are they communicated with in English? Are they seen on time? Does someone make sure that they have the keys before everyone in the office goes off for the bank holiday weekend? The answers to these questions are of far greater importance to the customer than the ones that we as practitioners, become obsessed with. And finally there’s the question of trust. Trust that you’ll do the job properly; trust that you’ll make the experience a pleasant one; trust that you won’t rip them off. And of course, trust that when that removal van is finally loaded, the keys will actually materialise. If there is an antithesis of commoditisation, it is a relationship of trust. For the most part the services we provide can only become commoditised if we allow them to. But to prevent this we have to think in terms of how we give value to those who use our services. What are the real benefits that are important to them? When we deliver those benefits and communicate them clearly, in terms that those in the market for what we do understand and appreciate, we really start to differentiate ourselves and break free from the lazy chains of commodity thinking. This requires thought and effort to position ourselves in the marketplace – but anyone can do it in any practice area. P

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Autumn 2016 dsba.ie John Geary is editor of the Parchment. He is principal of JV Geary Solicitors

Cross Examination

Crossing the Shannon

DSBA President Eamonn Shannon is a busy man. As if running his fledging eight fee-earner practice wasn’t enough, the Galway native has been heading up the association representing 4,000-plus solicitors in the capital over the past year. Parchment editor John Geary caught up with the tireless tribesman

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ne thing that strikes you when you meet Eamonn Shannon is his disarming sense of calm. Most of us are rushing and racing and getting distracted with emails and texts, and that’s just between meetings. We meet at a Dublin hotel for coffee and to do this interview. He shows no signs of nerves as a man about to lead a delegation of 150 Dublin solicitors to Washington DC for the DSBA’s annual conference. He is relaxed and in the zone. “It’s the biggest conference for many years,” he enthuses. “It promises to be a great event. We have a top-quality CPD programme. Supreme Court Judge Frank Clarke and EU Commissioner to the USA, David O’Sullivan are joining us at the offices of leading US law firm, Skadden Arps.” “Congressman Mike Doyle is hosting a lunch for us at Capitol Hill while Irish ambassador to Washington, Anne Anderson

“I like being able to help people and not to be constantly looking at your watch regarding billable hours. Especially family and friends. Most of the work I do is commercial. I like making money when my clients are making money”

is having a reception for us at her residence. Her brother Robert is a solicitor in Dublin.” Six years ago Shannon set up his own practice with colleague Ellen O’Connor. This was January 2010. The recession was at its height and legal practices were suffering badly. Yet Shannon saw the opportunity and they opened for business out of a serviced office on Upper Pembroke Street. Six and a half years later, business is going from strength to strength and they have eight solicitors, a trainee and support staff, not to mention a Galway office. Born and bred in Salthill, Eamonn Shannon is the youngest of five children. He owes immense credit to his parents whom he says “put every penny they had into their children”. After attending ‘The Bish’ secondary school, the young Shannon wasn’t quite sure what he would do after the Leaving. “Like a lot of people in my class, I had a general interest in the law. I used the Parchment 29

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“We will continue to grow our clientbase and grow the number of solicitors in the practice organically. I don’t see us amalgamating but I wouldn’t discount it. I see us growing once the need is there...We’ll just keep on doing what we’re doing”

to watch Perry Mason, Matlock and those type of TV shows. My brother Geoffrey was pursuing a career in law and he was a few years older than me. He was working with Holmes O’Malley Sexton at the time and was talking about the law a lot and that appealed to me. When I went to UCG I did a BComm degree. I did a major in accounting and a minor in law. I found that I became more interested in the law. I began to excel in my law subjects so I went to DIT Aungier Street and completed a post grad in legal studies, and that reinforced my decision to pursue a career in law.”

USA Connection Shannon was fortunate to have a cousin a lawyer in Chicago. Jim Fahy left Galway in his youth and some years later he was a partner in top Chicago law firm, Schiff Hardien. He offered his cub lawyer cousin a summer job as a paralegal and it was here where Shannon had his first real exposure to commercial law. “I loved it and it was a great experience. It was nice to be working on the principles of law that you had learned. I continue to work with Schiff Hardien to this day and we link together a lot on various transactions.” After coming back from the USA, he put his head down, bagged the FE1s at Blackhall Place and secured an apprenticeship with Margaret Meade, a sole practitioner on Abbey Street, Dublin. He later transferred his indentures to Patrick S Cahill Solicitors in Dundrum. “I got a great apprenticeship in both practices. In Patrick Cahill’s firm there was a lot of focus on commercial transactions. The firm specialised in stamp duty and Patrick was an expert in that area. I qualified in February 2005 and stayed on working post qualification. Back in the halcyon days of the Celtic Tiger I worked on a lot of ‘sale and leasebacks’ of nursing homes and hotels as well as commercial conveyancing and litigation. I got a good grounding in general practice while there. I continued to work with Patrick for five

years PQE until 2010 when I felt it was time to set up my own practice.”

New Beginnings The sign for Shannon & O’Connor Solicitors went up and word got out. He says that the time came where he was getting a significant amount of business through his own contacts. “I realised at that stage that the time was right for me. The recession had begun to grab hold. I set up with my business partner Ellen. We worked together in Drundrum and always had a good working relationship. We both bring different qualities. She is a fantastic organiser. I am good at getting clients in and Ellen is brilliant at running the practice. We complement each other.” Shannon describes setting up as both “daunting and exciting”. Month after month new clients found the practice with referrals and recommendations were coming thick and fast. “We then needed to take on a secretary. We then took on a trainee. We needed more space so we got that. We then hired a solicitor and later we needed to hire another solicitor. It was incremental growth. Last year we realised we had outgrown the serviced office and we needed our own building. We now have eight solicitors, a trainee and support staff.” We also step up a Galway office about two and a half years ago. Galway is the medical device capital of Ireland and we advise a number of those companies and other companies in the life sciences sector. Being from Galway myself, we have a lot of clients from Galway. It was a natural next step. It’s a small office but we have a presence there. It is our intention to build that office.” I ask Eamonn if he always envisaged being his own boss. He explains that he likes helping people on legal issues that arise for them. It becomes clear that he is a man who is generous with his time when he talks about billable hours. “I like being able to help people and not to be constantly looking at my watch with regard to billable hours. Especially family and friends. Most

of the work I do is commercial. I like making money when my clients are making money. But sometimes people don’t have the means, and I think if you help out in certain situations, the rewards come back to you. There’s a benefit to that. I think the profession can be too focused on billable time.” Looking back over the rapid growth of the firm, he is candid. “I didn’t expect it to grow as fast as it has, but looking back, it grew incrementally. We just hired in help as we needed to.”

Workaholic I get the distinct impression that building the Shannon & O’Connor brand wasn’t done spending time having pints in Doheny and Nesbitts or doing the crossword in Baggot Street cafes. It was hard graft and focus. He admits that some people might describe him as a workaholic. “I would prefer to describe myself as someone who is just trying to build a practice that I want to be proud of and that I am proud of. I don’t see my work as being work and I get a buzz out of getting a new client. I don’t consider my work as a chore. I enjoy my work and I love what I do.” But an insight into his typical day reveals that Shannon is a thoroughbred workhorse.”My routine is to get up at 4.305am and be in the office before 6am. I would leave the office sometime between 7 and 8pm.” I put it to him if he expects his employees to work the hours that he does. “I would prefer if they did their work within normal working hours. We all get along well and they are very good as sometimes commercial work does go beyond regular hours where the need arises.” However, he stresses the importance of downtime and switching off at weekends. A member of Dun Laoghaire Golf Club, he plays most Saturdays with his father-in-law Michael Knightly. His handicap of 21 is coming down “slowly”. Shannon makes the gym “two or three times a week” and enjoys reading, supporting Liverpool and taking his wife Caroline out to dinner. Having the golden touch with business is one thing, but Shannon had the Midas touch when it came to tying the knot. He met Rathfarnham native Caroline Knightly some years previously and their love of golf brought them together on a group trip to Portugal. They married in September 2010, just months after setting up shop on Pembroke Street. “Caroline has been unbelievable and fantastic in every way. She has been so supportive and very patient. I couldn’t have done any of it without her.

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Autumn 2016 dsba.ie

Cross Examination

Photography: Bryan Meade

“She has been amazingly supportive and understanding over the past year too while I have been president of the DSBA.” What of the future for Shannon & O’Connor? “I see the same growth as the past few years. We will continue to grow our clientbase and grow the number of solicitors in the practice organically. I don’t see us amalgamating but I wouldn’t discount it. I see us growing once the need is there. If the future means staying the same size or doubling in size, we just don’t know. We’ll just keep on doing what we’re doing.”

Eamonn Shannon at a glance

DSBA Shannon recalls getting involved in the DSBA Younger Members’ Committee some years back. “I was a social rep in Blackhall Place and it all started from there. I got a call after I qualified to see if I would join the Youngers Members’ Committee. After a couple of years I remember getting a call from Michael Quinlan and Stuart Gilhooly telling me that there was an upcoming DSBA AGM and would I run. I did and I have been on the DSBA Council since. I was also chair of the Litigation committee and chair of the Commercial Law committee. “It has been a hectic year but a fantastic year as president. There has been a lot of work and a lot of events to attend and travel to. I’ve been to various other Bar Association socials. You get to know your colleagues an awful lot better and get to hear the real issues that they have. I found that one of the biggest issues during the year is that colleagues believe that they are not being fully represented and that the issues closest to them are not being heard. For example, there has been too much of a focus on price/fees rather than quality. The costs of conveyancing have plummeted from what they were. There is a cohort of solicitors who are charging very low prices. That is great for consumers but only if the work is being done fully and properly. This very issue surfaced post-Celtic Tiger as during the boom, some solicitors couldn’t afford to give it all the time that was needed. Your typical conveyance now takes a lot of hours. This is an issue for practitioners but it has been created by practitioners. I don’t know what can be done about this undercutting but it is seeping into other transactions too. It is not confined to smaller firms because even larger firms are undercutting each other. What previously might have been a partner or senior associate dealing with a transaction in order to get the work done on budget, or below it - firms are getting

FAVOURITE MOVIE On Her Majesty’s Secret Service FAVOURITE BAND Queen READING RIGHT NOW Arnie & Jack: Palmer, Nicklaus, and Golf’s Greatest Rivalry by Ian O’Connor GREATEST INFLUENCE ON LEGAL CAREER Geoffrey Shannon and Jim Fahey

assistant solicitors and trainees to do the work. That in itself could cause problems.” One of the highlights of the year for President Shannon was the annual DSBA judges dinner and the annual Book Awards dinner. “The Book Awards dinner in particular was a fantastic night and it was great that my brother Geoffrey was able to join me on the night even though it was his birthday.” He credits a very successful year at the helm to his colleagues on the DSBA Council. “We couldn’t have achieved so much without the great voluntary work of each member

of the DSBA Council who have been a marvellous support. Huge credit must go to Maura Smith for her Trojan work and to Anna and Elaine in the DSBA office.” Our interview draws to a close and I am struck by Eamonn Shannon’s drive and verve. He has skippered the DSBA through the past year which has seen a growth in the Association’s membership and a record number of CPDs being held. For a man not yet 40, he has achieved a hell of a lot in a relatively short period of time largely down to his insatiable work ethic, collegiality and desire. P the Parchment 31

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The Workplace Relations Commission One Year On: Pointers for Practitioners The Workplace Relations Commission (WRC) was established on October 1st 2015, the same day that its parent legislation, the Workplace Relations Act 2015 (“the Act”) came into operation. The Act effected a major consolidation of Ireland’s five employmentrights institutions. Loughlin Deegan assesses how the new WRC is working for litigants and practitioners

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t present the old system is working in parallel with the new, as the older institutions are in the process of disposing of their “legacy” cases. Once that process is complete, we will have a streamlined institutional framework comprised only of the WRC and the Labour Court. As enacted, the Act contained many errors and oversights. It has already been amended four times and further amendments are believed to be imminent. A non-statutory consolidation is available on the Law Reform Commission’s website.

Complaints and Appeals In contrast to the jurisdictional jungle that existed prior to 2015, the Act provides a straightforward division of functions between the institutions. Adjudication officers of the WRC sit in private and have first-instance jurisdiction over all employment rights complaints and individual industrial relations disputes. The Labour Court sits in public, has exclusive appellate jurisdiction in both employment rights and industrial relations matters. The WRC also administers the labour inspectorate, the entity formerly known as the National Employment Rights Authority. Part 4 of the Act, entitled “Complaints and Disputes,” relates to complaints of breaches of employment law and disputes under industrial relations legislation. The title is misleading, Part 4 only relates to complaints under certain scheduled provisions of some employment statutes. Part 4 does not apply to complaints under the Unfair Dismissals Acts or the Employment Equality Acts. Instead, those acts (and several others) have been amended piecemeal in Part 7 of the Act. The amendments in Part 7 establish procedures that are broadly equivalent – but not always identical – to the complaints procedure set out in Part 4. This structure has had some unintended consequences. For example, an adjudication officer has the power to summon witnesses in complaints to which Part 4 applies, but has no equivalent power in complaints under the Unfair Dismissals Acts.

Breaches of Employment Law The WRC has encouraged practitioners to submit complaints of alleged breaches of employment law online on a form available on the WRC website. The online application form is not a statutory requirement. Any written complaint (made within time) is sufficient grounds for a complaint. Most complaints must be made within six months of the date of the contravention. This period may be extended by a further six months where the delay was due to reasonable cause. Once lodged, a complaint is given several types of reference numbers. The WRC has advised practitioners to use the adjudication file reference number (the type commencing with the letters ADJ) in correspondence, as this reference number links all related complaints by the same complainant against the same respondent. An application for the postponement of a scheduled hearing should be sent to the Post-Registration Unit of the WRC at the earliest practicable opportunity. An application should always be supported by a narrative explanation of the reason why the application is necessary. Supporting documents, such as evidence of pre-arranged travel plans for a vital witness, should be appended to an application. Unavailability of a legal representative is not regarded by the WRC as a compelling reason to grant a postponement. The WRC does not always insist that the other party be put on notice of an application for a postponement. Providing evidence of consent is helpful, but does not guarantee that an application will be successful. Conversely, parties are sometimes inconvenienced by postponements having been granted to one side without notice being given to the other side, so it is prudent to confirm that a hearing is proceeding before travelling to it.

Mediation The Act provides for a mediation process that is comparable (but not identical) to that which previously existed under the Employment Equality Acts. Mediation may only occur prior to a complaint being sent for adjudication. Mediation will only take place if the Director General of the WRC “is of the opinion that a complaint or dispute is capable of being resolved”

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Autumn 2016 dsba.ie Loughlin Deegan is an associate at ByrneWallace Solicitors. He specialises in employment law

by mediation. Mediation may not occur if either party objects to it. The Act provides for the traditional form of face-toface mediation conferences. It also permits a mediation officer to “employ such other means as he or she considers appropriate for the purposes of resolving the complaint”. These “other means” sometimes take the form of phone calls made by WRC officials to the parties to explore the possibility of a settlement. Practitioners have expressed dissatisfaction with aspects of the mediation process. The telephone-based system appears to rarely resolve a complaint. Some practitioners have complained that there is an insufficient number of mediators and that mediation has been denied in some cases even where both parties have requested it. The WRC has rejected that complaint and has asserted that all requests for mediation are accommodated, provided neither party objects to the mediation. It remains to be seen whether this valuable element of alternative dispute resolution is achieving its full potential.

The WRC Procedures Where a complaint is not resolved by mediation, it will be investigated by an adjudication officer. The Act provides some basic procedural powers for an adjudication officer in complaints under Part 4. He or she: • shall give the parties the opportunity to be heard and present relevant evidence; • may require any person to attend, give evidence and produce documents and • shall issue a decision in writing. The Minister for Jobs, Enterprise and Innovation has not exercised her power to make regulations governing the presentation of complaints or conduct of proceedings before adjudication officers. Instead, the WRC has produced a non-statutory document setting out its procedures. These WRC procedures require parties (in certain circumstances) to submit written submissions in advance of hearings, and to identify the witnesses that they propose to bring to those hearings. The WRC procedures expressly provide that parties will be allowed to question the other parties and any witnesses.

Employment Law

It is not clear whether any significant consequence can follow from any failure by a party to comply with these non-statutory requirements.

Appeals to the Labour Court Decisions of an adjudication officer can be appealed to the Labour Court within 42 days, or later if the court is satisfied that the delay was due to the existence of “exceptional circumstances”. The court has powers to: • summon witnesses; • take evidence on oath and • require any summoned witness to produce “any document in his power or control”. This last power is helpful to practitioners since there is no provision for discovery prior to a hearing of the court. A further means by which evidence may be discovered is through the WRC’s labour inspectorate. The court has the power to direct “upon the hearing of an appeal” that a respondent employer be inspected for employment law compliance. Inspection reports can be adduced as evidence in appeals before the court. Appeals before the court are heard de novo. The court usually requires all evidence to be produced afresh. Representatives are not obliged to deconstruct the merits and flaws of the first-instance decision. The court has exercised its statutory power “to make rules for the regulation of its proceedings” by making the Labour Court (Employment Rights Enactments) Rules 2016. These rules set out in the main the features of the process at, and prior to, court hearings. A party may appeal a decision of the Labour Court to the High Court but only on a point of law. The Act’s abolition of a full right of appeal to the civil courts in unfair dismissals cases has been totemic of the new structure. It emphasises how judicial power in the employment law sphere has been concentrated in an administrative tribunal. As the WRC and Labour Court establish themselves under the new statutory regime, practitioners are making the best of the situation but are wary of institutions that were designed to administer justice without involving lawyers. Time will tell how well the institutions are operating. P

As the WRC and Labour Court establish themselves under the new statutory regime, practitioners are making the best of the situation but are wary of institutions that were designed to administer justice without involving lawyers

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New Lobbying Regime It is hard not to roll the eyes at yet another administrative hoop; another new obligation to comply with. We grumble that it is distracting us from the real business of work, taking us away from activities that really add value to our practice. Cormac Ó Culáin says the reporting obligations under the new lobbying regime, if handled correctly, may buck that trend and should be seen as a tool to be leveraged, rather than a burden to be carried

Due to the public disclosure of client affairs and the intention behind the lobbying effort, it is vital that practitioners understand the Act

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t its most general the Regulation of Lobbying Act 2015 provides that where firms acting on behalf of clients, communicate with certain designated public officials, either directly or indirectly on particular matters, they are required to register the fact of its occurrence – three reporting periods annually on a public online register known as the lobbying register (www.lobbying.ie). Due to the public disclosure of client affairs and the intention behind the lobbying effort, it is vital that practitioners understand the Act. The impact of nondisclosure on both practice and client should also be considered.

To Register, or Not to Register… The Act provides that registration is required where the following provisions are satisfied: 1. Communications are made by either: a) third-party professional (which includes solicitors, accountants, public relations professionals, etc). The term is defined at Section 5(1)a as a person “makes, or manages or directs the making of any relevant communications on behalf of another person in return for payment (in money or money’s worth)” b) employers (your clients) of more than ten fulltime employees (Section 5(1)b) and c) representative bodies who have more than one paid employee, and the representation is made by said employee d) a private individual on matters relating only to planning and development, that do not relate to their principal private residence (see section 5(9) also). An example of this would be a landowner lobbying councillors, local authority officials and others for a change in zoning, etc outside the terms of a public consultation.

2. The mode of communications is immaterial. Section 5(4) anticipates communication to be ‘oral or written or however made’ and that they are made personally (directly or indirectly) to the designated public official. Accordingly, a social media campaign organised by an advocacy group may require registration. Likewise, contact by telephone, text, encounters at the edges of conferences and even the chance meeting at the edge of a pitch with a designated public official; are all registrable where the content of the interactions relate to a ‘relevant matter’. 3.The communication relates to ‘relevant matter’. This is the nub of the matter and in my view, a subjective test. The Act defines what is a ‘relevant matter’ and what exemptions are provided for. The exemptions are considered below. In respect of relevant matter Section 5(9) provides that the communication must relate to, “any matter relating to: a) the initiation, development or modification of any public policy or of any public programme b) the preparation or amendment of an enactment, or c) the award of any grant, loan or other financial support, contract or other agreement, or of any licence or other authorisation involving public funds. Section 5(9) contains an extremely important exemption to registration for communications that ‘relate only to the implementation of any such policy, programme or enactment or of a technical nature’. The circumstances of each case must be considered against this important provision. 4. The communication must be with a ‘designated public official’. The definition of designated public officials contained in Section 6 must be read in conjunction with SI 367/2015 and also SI 362/2016. These SI include a schedule of public bodies and classes of employees that fall within the definition of designated public officials. For example, in addition to elected

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Autumn 2016 dsba.ie Cormac Ó Culáin is a solicitor and public affairs executive at the Law Society of Ireland

politicians and their advisors (including councillors, and Irish MEPs) and the top tier of the Civil Service (Secretary General to Assistant Secretary), it also includes the CEO of the Legal Aid Board, the director of the Insolvency Service, Data Protection Commissioner, CEO of Property Registration Authority and others. Depending on your clients’ affairs, you are strongly urged to familiarise yourself with these SI, and to be mindful of future additions.

What are the Exemptions: Oh Exemptions Set Me Free! A conversation with a designated public official on the hidden gems of the Wild Atlantic Way, is clearly not registrable. Personal conversations with designated public officials are permitted! The main classes of exemptions or ‘excepted communications’ are provided for at Section 5(5) from a – n. The more relevant exemptions include: - communications by or on behalf of an individual relating to his or her private affairs about any matter other than the development or zoning under the Planning and Development Acts 2000 to 2014 of any land apart from the individual’s principal private residence, - communications requesting factual information or providing factual information in response to a request for the information, - communications requested by a public service body and published by it. This would include replies to public consultations for example, - communications which are made in proceedings of a committee of either House of the Oireachtas, - communications the disclosure of which could pose a threat to the safety of any person. In addition to those above, practitioners are advised to recall the fact that if the matter relates to implementation or is of a technical matter, that it does not require registration (Section 5(9)).

Overview of Other Important Provisions Space does not permit detailed elaboration on other important provisions, most importantly the mechanism for delayed publication at Section 14. Where the safety or business affairs of your client may be compromised by publication, a six-month (renewable) delay may be sought. For firms who may be considering bringing on board former designated public officials as either consultants or employees, Section 22 restricts such contracting for a period of at least a year, following their previous public role. For those advising public sector bodies, state agencies and commercial semi-states; you are recommended to familiarise yourself with their obligations and exemptions. For example, the schedule to the Act contains a number of agencies and bodies that are not to be treated as public service bodies, and thus have the same obligations as regular companies. Section 7 provides that there is no statutory obligation

Lobbying

on the employees of certain public bodies and agencies to register their communications with their parent government department.

Be Entrepreneurial… Explore the register, see what other entities are lobbying on, or on whose behalf. Are there potential clients lobbying on matters you could assist with? Are your existing clients using other third parties for lobbying when they could be relying on your firm? What is your competition lobbying on? Develop a competence for the lobbying regime. Know what is and what is not lobbying. Be in a position to offer expertise on lobbying and to develop it as a value added for your clients. As trained advocates, wordsmiths and communicators, the legal profession is arguably more credible on technical matters than others providing such a service. Are there matters of general application to your clients, or category of clients that you could be lobbying on? Or is the information available elsewhere, whether through existing published FOI logs, parliamentary questions etc? See the Law Society’s public affairs members’ area page, for an introduction to useful sources and links. Reinforce the internal reporting culture and systems now. As noted previously, the enforcement procedures and penalties under Part 4 will be effective from January 1st 2017 but will apply to the reporting period September 1st 2016 until December 31st 2016. Accordingly firms and practitioners – and in certain cases their clients - must now comply with registration obligations since September 2016, to avoid penalties and fines. While failure to register notifiable communications may result in a monetary fine, the reputational damage is far more severe for both firm and client. It is vital that all employees are up to speed with the provisions of the Act.

Conclusion Yes. The administrative burden grows as we represent our clients’ increasingly complex needs. Where they increasingly traverse public policy and administration, a particular set of skills and competencies may be required and developed by legal advisors. Compliance with the lobbying regime should be seen as a platform to develop new services for existing clients and as a possible niche of interest to new clients. P

Consultation Announced The Department of Public Expenditure and Reform will be soon commencing a review of the Regulation of Lobbying Act. Practitioners are invited to provide their views, experiences and suggestions for reform to Cormac O’Culain (c.oculain@lawsociety.ie) who will be drafting a Law Society of Ireland response to the consultation. Matters that might be considered include administrative burden, client confidentiality and the practicality of certain provisions. the Parchment 35

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News

Charity Trip to Haiti LK Shields solicitor and DSBA Younger Members’ committee member Sarah Browne tells of a memorable recent trip to Haiti with the charity Haven

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s part of LK Shields corporate partnership with Haven (www.havenpartnership.com), my colleague Kate Kenneally and I were both lucky enough to have been selected to travel to Haiti last April. We managed to raise over €8,500, all of which went to Haven and the good work it is doing in Haiti in circumstances where LK Shields kindly covered the cost of the trip. Haven is an Irish NGO working solely in Haiti to facilitate the provision of adequate water, sanitation, shelter and educational solutions for vulnerable Haitians. Sustainable community development is at the core of all of Haven’s work in Haiti. Kate and I travelled to Haiti on April 25th 2016 with 29 other volunteers from Ireland, England and the US. As soon as we landed in Port-au-Prince I was struck by the extreme poverty, crime, pollution and overcrowding. It was like nothing I had ever experienced before. There is a real feeling in the air that people are trying to survive and as a result, the danger is palpable. During our time in Haiti we spent eight days working in the stifling heat to improve an orphanage and school outside Port-au-Prince called Hope House Haiti (www. hopehousehaiti.com). The work was hard but extremely rewarding. In the course of the eight days we painted the existing classrooms, repaired the septic tank, built a chicken coop and moved in 1,000 chickens which will provide a sustainable income and food source. We also replaced the mosquito nets in the kitchen - enabling the kitchen to be used once again, regravelled the whole site, painted murals on the walls and most

impressively, built a new kindergarten school. The kids were definitely the highlight of the whole experience – most of whom have been faced with major adversity, but they still seem so happy and affectionate. When the kids were allowed to explore the kindergarten for the first time, their reaction was amazing. They sang a song in French/Creole, the chorus of which was “Merci, Merci, Merci” and we were reminded of the whole point of the trip. I left Haiti with a heavy heart but with a massive feeling of accomplishment and a feeling that I had made a small difference in the lives of these children - safe in the knowledge that I will be back again some day. My colleague Kate Kenneally and I would like to sincerely thank all of you who contributed to our fundraising efforts over the past few months to enable us to participate in the Haven Build Week in Haiti 2016. P

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Intellectual Property and IT Law Contains the best of our Irish and UK titles plus a monthly update which will keep you up to date with developments! As new titles publish, they are added to the site at no extra cost, so the service is constantly expanding, giving even more value for money. Irish Titles • Irish Copyright and Design Looseleaf • Intellectual Property Law in Ireland, 4th edn (2016) • Privacy and Data Protection Law in Ireland, 2nd edn (2015) • Information Technology Law in Ireland, 2nd edn (2007) • Guide to Trade Mark Law and Practice in Ireland (2011) • EU Privacy and Data Protection Law (2016)

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New online service launching October 2016 Also available as part of Bloomsbury Irish Law Online: • Irish Property Law • Irish Company Law • Irish Employment Law • Irish Civil Litigation Law • Irish Wills & Probate Law • Irish Criminal Law • Irish Tax

For further information or to arrange a free trial, contact Seán O’Neill T: 01-6373920 M: 086-1808650 E: sean.oneill@bloomsbury.com

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In Giving, We Receive - CHARITY LAW UPDATE

On October 16th 2014 the majority of the Charities Act 2009 (“Charities Act”) was commenced and an independent agency established to increase public trust and confidence in the charity sector. The Charities Regulator’s powers have recently been increased and the establishment of the Charities Appeals Tribunal is imminent. Katie Cadden provides an overview of recent developments in charity law

The New Charity Landscape In 2014 the Charities Regulator assumed responsibility for the registration and regulation of charities operating in the State including community groups, schools, universities, churches, healthcare providers and others providing public benefit as specified in the Charities Act. The following came under the ambit of the Charities Regulator upon establishment: • Some 8,034 charities in existence on October 16th 2014 with charitable tax exemption from the Revenue Commissioners; • Any existing charities on October 16th 2014 without charitable tax exemption from the Revenue Commissioners; and • Any new charities formed on or after the establishment date intending to operate or carry on activities in the State. A phased programme to support the statutory functions of the Charities Regulator commenced in 2014 with: (i) The continuance of the provision of services to charities formerly provided by the Commissioners of Charitable Donations and Bequests for Ireland through a dedicated Charity Services Committee; (ii) The establishment and maintenance of a public register of charities; and (iii) The establishment and maintenance of a reporting framework for charities. Phase two recently commenced with: (iv) The proactive monitoring of the compliance of charities with their legal obligations and investigation of any perceived breaches of these.

New Investigative and Protective Powers On September 5th 2016 Part 4 of the Charities Act was formally commenced. The range and scope of the widely drawn provisions includes:

Power of Investigation The Charities Regulator now has the significant power to investigate the affairs of charities and appoint inspectors where deemed appropriate. There is no requirement that the Charities Regulator has a particular concern in order to exercise this power. Power to compel production, attendance and assistance An appointed inspector can direct a charity trustee as defined in the Charities Act or agent of a charity to: • Produce books, documents and other records relating to the charity; • Attend before the inspector; and • Give to the inspector all assistance in connection with the investigation which they are reasonably capable of giving. An “agent” in this instance would include a banker, solicitor or auditor to the charity in question. These powers further extend to any person who it appears to the inspector, is in possession of information concerning the affairs of the charity. An inspector may examine on oath any charity trustee, member of staff or agent of the charity regarding the charity’s affairs. Failure to co-operate with an inspector is a criminal offence. Enter and Search Pursuant to Part 4, the Charities Regulator or its inspectors may apply to the district court for an order to enter and search the premises of a charity and take possession of documents, if satisfied that there are reasonable grounds for believing that there has been a failure to comply with a direction of the Charities Regulator to produce. Reports An appointed inspector shall, if so directed by the Charities Regulator, make interim reports and make a final report to the Charities Regulator on conclusion of the investigation. The Charities Regulator may, if it considers it appropriate, furnish the report to: • The charity concerned; • To charity trustees, officers and auditors of the charity;

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Autumn 2016 dsba.ie Katie Cadden is a solicitor with P O’Connor & Son Solicitors and a board member of the Charities Regulator

• To any persons whose conduct is referred to in the report, or any other person (including a member of staff) whose financial interests appear to the Charities Regulator to be affected by the matters dealt with in the report, whether as a creditor of the charity or charitable trust or otherwise; and • The Central Bank, the Revenue Commissioners and the DPP. Intermediate Sanctions Where certain obligations of charity trustees as defined in the Charities Act are contravened, the Charities Regulator is not obliged to bring proceedings and can, if it considers it reasonable and proportionate in the circumstances not to bring proceedings, impose intermediate sanctions. In these circumstances the charity must provide the Charities Regulator with an undertaking regarding: - The rectification of the breach or taking such steps as directed by the Charities Regulator; and - Acceptance of the imposition of the intermediate sanction. There are two forms of intermediate sanction: - Temporary de-registration; and - Publication of particulars of the contravention on the Charities Regulator’s website.

Protection of Charities The Charities Act grants express extensive powers to the High Court to protect charities. The Charities Regulator may make an ex parte application to the High Court to suspend or remove charity trustees or staff members and prohibit the removal or sale of charity property amongst a range of other orders. The High Court may grant these protection orders where it is satisfied that: - An offence has been or is being committed in relation to a charity; - Any provision of the Charities Act has not or is not being complied with in relation to a charity; - Any property of the charity is being misapplied or is being dealt with or managed in a manner that

Charity Regulation

endangers the property; or - There has been any other misconduct or mismanagement on the part of any charity trustee or member of staff regarding the affairs of the charity.

Charity Appeals Tribunal Part 5 of the Charities Act provides for the establishment of a Charity Appeals Tribunal (CAT) to determine appeals of decisions of the Charities Regulator as provided for in the Charities Act. In August 2016 the Minister for Justice and Equality appointed the requisite five members to the CAT which will be entirely independent of the Charities Regulator with its own separate executive. The CAT is intended to provide a speedy and inexpensive mechanism for appealing decisions of the Charities Regulator. The CAT will hear appeals of decisions made by the Charities Regulator to refuse to register a body applying for registration or a decision to remove a charity from the register of charities. There is no appeal to the CAT on a decision of the Charities Regulator to impose intermediate sanctions. Once formally established, hearings will be conducted in public but with the caveat that the CAT may direct that the identities of one or more parties to the appeal may not be disclosed. All CAT appeals must be brought within 21 days from the date of the decision that is being appealed. The CAT is empowered to affirm the Charities Regulator’s decision in each case or to reverse that decision. The Charities Regulator will be bound by the decision of the CAT. There is an onwards appeal from the CAT to the High Court on a point of law and leave to appeal must be granted.

The Charities Regulator now has the significant power to investigate the affairs of charities and appoint inspectors where deemed appropriate

Conclusion The Charities Regulator has been afforded enhanced and wide-ranging powers designed to ensure that charities are protected and well managed. At this important and challenging time for charities, the commencement of Part 4 of the Charities Act and the imminent establishment of the CAT are positive and welcome developments for charity regulation. P the Parchment 39

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New High Court Rules Chair of the DSBA Litigation committee Joe O’Malley examines the new rules which came into force on October 1st and says that the new rules are a radical departure for the conduct of trials and pre-trial procedures in chancery and non-jury actions

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e do not need Jeremy Bentham or Lord Justice Woolf to tell us that our administration of justice should be delivered with greater efficiencies, particularly in terms of time, cost and better management of pre-trial preparations and procedures. Having experienced radical reform of our civil procedures in the Commercial Court arena and more recently with the establishment of the Court of Appeal, and having observed the impact which the civil procedure rules have had in our neighbouring courts of England and Wales, it seems undeniable that practice and procedure rule changes do matter. Undoubtedly these changes can create significant and often overwhelming burdens on practitioners and their clients but as recent developments have demonstrated, civil cases have moved along with greater speed and efficiency as a result of such reform. The statistics emerging from Courts Services point to the success of new civil procedure rules. In the case of the Commercial Court, more than 90% of all cases admitted to the commercial list in a given year, will have concluded within one year such admission, according to the statistics for 2014. The statistics for 2015 recorded during that year, the court received 148

new cases and resolved 111 during the same period. In its inaugural year, the Court of Appeal resolved 750 cases compared to incoming cases of 641. Now we are faced with two statutory instruments intended to expand civil procedure reform into the chancery and non-jury courts. The rules of the Superior Court (Conduct of Trials) 2016 (SI No. 254 of 2016)(the “Trial Rules”) and the rules of the Superior Court (Chancery and Non-Jury Actions and other Designated Proceedings) Pre-Trial Procedures 2016 (SI No. 255 of 2016) or (the “Case Management Rules”) will bring about very significant changes to the rules of the Superior Courts. Practitioners in these courts have no option but to keep pace. While the trial rules commence and have effect from October 1st 2016, the President of the High Court has very recently deferred the coming into effect of the case management rules pending the provision of appropriate necessary recourses.

The Trial Rules The explanatory note of the trial rules states its purpose “to regulate … the procedure for the conduct of the trial and the adducing of expert evidence”. It

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Autumn 2016 dsba.ie Joe O’Malley is a partner at Hayes solicitor and he is also chairman of the DSBA Litigation committee and council member of the DSBA

achieves this through the following core features: i. Pleadings It creates a new Order 20, Rule 12(1) which will require that a statement of claim must disclose any intention on the part of the plaintiff to offer expert evidence to support any matter at trial and to state succinctly the field of expertise concerned and to describe the matters in which expert evidence is intended to be offered. The same details will also be required in any defence (and counterclaim, if applicable). In practice this means that we will need to engage more intensively with our experts at the very outset of litigation and this will inevitably result in a frontloading of labour and costs. ii. Non-Party Information The rules create Order 31, Rule 30 which will supplement the non-party discovery and interrogatories regime governed by Order 31, Rule 29. The new provision requires any non-party who has access to information which is not reasonably available to a party to the litigation, to prepare and file a document recording that information and serve a copy of that document on the parties to the proceedings. On the face of it, this may entail the High Court ordering the preparation by a nonparty of a witness statement or affidavit dealing with any number of issues that could be relevant to the litigation.

iii. Mode of Trial The creation of Order 36, Rule 9 allows the court to make directions concerning the order in which issues of fact and/or law should be tried and the method by which those issues should be tried, whether on affidavit or through oral evidence. iv. Assessors The use of assessors is already provided for in Order 36, Rule 41 but in a very general sense whereby the pre-existing rule stated that “trials with assessors shall take place in such manner and upon such terms as the court shall direct�. The new provision, Order 36, Rule 41 permits one or more assessors to be appointed either on the application of any party to proceedings or by the court of its own motion, having heard submissions from the parties on any proposed appointment. It also requires the court to hear submissions in relation to the identity of any proposed assessor and the terms of the remuneration to be paid. Further, the new rule provides that the court may direct the attendance of the assessor for the whole or any part of the trial. Indeed experience has shown that assessors that have been used in long-running cases have often sought to be excused leading to complications and the potential collapse of trials.

Litigation

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Like many important or radical developments in jurisprudence, these rules will present significant challenges for practitioners in the chancery and non-jury courts and any other court that the rules may be extended to into the future v. Time Management. Order 36, Rule 42 now provides that the court may require any party to proceedings to provide a reasoned estimate of the time likely to be spent in the trial of the proceedings and it permits the court, having considered a time estimate, to make directions in relation to the conduct of trial, which can include insisting on specific time limits for each and every aspect of the trial and basically directing on proofs in relation to the trial. vi. Evidence by video link. Order 39, Rule 55(1) allows for evidence to be given by live video link by a witness inside or outside the jurisdiction and allows the court to make consequential directions. It is a requirement that the facilities must allow the witness to see and hear the proceedings in the courtroom. vii. Treatment of Expert Witnesses The creation of new Order 39, Rule 57 and 58 provides statutory recognition for the duty owed by experts to the court and requires them to disclose matters which might give rise to a conflict of interest. It also enables the court to make any series of directions in respect of expert witnesses, which may concern the focus or the duration of their evidence; the appointment of a single joint expert; interrogation of experts prior to trial; private meetings between experts; the production of a joint report following such meetings and directions on whether experts would be examined sequentially or together (adopting the recently developed international procedure colourfully described as “hot tubbing�).

The Case Management Rules These rules (which will be commenced at a later stage when appropriate necessary resources are put in place) provide for a radical departure of civil procedures by affording the court significant discretion in relation to pre-trial directions, case management conferences and pre-trial conferences. In effect, they allow the judge at pre-trial stage to make orders specifying the nature of the evidence or the witnesses (including expert witnesses) required to enable the court to determine issues. At trial stage the rules go further, by enabling the trial judge, having heard the parties, to make orders or give directions fixing or limiting the amount of time allowed to each party for examining and cross examining witnesses and in relation to the nature of the evidence required to enable necessary issues be determined and

the manner in which such evidence is put before the court. The rules also allow the court to require the parties or any party at any stage of the trial to identify the issues which arise or remain for determination by the court and the questions which a court is required to decide in order to determine each issue. The rules go further yet again in relation to expert evidence by enabling the judge to make orders or give directions as to expert evidence by determining the fields of expertise for the required experts. They break new ground by allowing the trial judge to direct that experts may not be examined by counsel for either party. While case management conferences and pre-trial conferences are provided for under the Commercial Court rules, the fact that these facilities are rarely utilised in complex and high value commercial litigation does not bode well for their effective utilisation of non-jury and chancery actions. Importantly, the rules relating to pre-trial conferences now provide that a certificate of readiness for trial will no longer be issued by the parties to the proceedings but rather by the judge in charge of the pre-trial conference. The most significant development within case management rules is the requirement to produce witness statements and expert reports not less than 30 days prior to the trial of the action, unless otherwise ordered. For those of us having chancery and non-jury cases scheduled for hearing in the near future, this is a cause for panic more than alarm. Further, the witness statement (or expert report) so prepared will constitute the evidence in chief for the relevant witness, subject to it being verified on oath. Thus the witness may be subjected to cross examination within minutes of landing in the witness box. In the event that additional witnesses become necessary, particularly following receipt of the witness statements from the other side, then it is necessary to obtain leave of the trial judge for utilisation of such witnesses. If one is not satisfied with the direction made by the trial judge in this context, then it is unclear as to whether or not that direction is one which can be appealed to the Court of Appeal, and whether the trial can proceed regardless of that appeal. One can easily see how one side or the other can be disappointed with such a direction at this stage of a case which may warrant consideration of an appeal.

Conclusion Like many important or radical developments in jurisprudence, these rules will present significant challenges for practitioners in the chancery and nonjury courts and any other court that the rules may be extended to into the future. It is undeniable that changes in civil procedure rules and practice have led to greater efficiencies in the administration of justice, as demonstrated with the success of the Commercial Court and the Court of Appeal to date. Whether these rules represent too great a leap for practitioners and judges to cope with remains to be seen. Certainly, the rules move away from the traditional and familiar adversarial process and now place very onerous and demanding additional tasks on each side of the bench.

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Storm Brews in Data Commissioner Case One of the most significant cases currently before the High Court is the Data Protection Commissioner (DPC) v Facebook Ireland & Max Schrems (Schrems 2). The case involves a complaint by Mr Schrems about the transfer of his personal data by Facebook Ireland to the USA. Barrister Gary Fitzpatrick takes a closer look at the issues involved

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he Schrems 2 case follows on from the findings of the European Court of Justice (ECJ) in Schrems v. The Data Protection Commissioner (DPC), (Case C-362/14) (Schrems 1) where that court struck down the Safe Harbour agreement that was used as a legal basis for EU/USA data transfers. It is accepted by all of the parties that the DPC’s choice of plenary proceedings was merely a procedural device to get a reference to the European Court of Justice (ECJ) on the validity of three decisions of the European Commission on the use of standard contractual clauses (SCC) as a legal basis for international data transfers. In Schrems 1 the ECJ said that the DPC had to have the legal capacity to take a case to seek a reference if she received a complaint about a Commission decision that she considered to be “well founded”. To underline the importance of Schrems 2, it is estimated that it could cause disruptions to international data transfers that could cost the European economy €145bn per year. The case was entered into the commercial list in June 2016 and is set for a three-week trial in February 2017. But has the DPC chosen the correct legal procedure to get a reference to the ECJ? This article will examine what has already happened in the case and will then try to predict what might happen in the coming months. It will then suggest alternative options that might have produced a better outcome.

Schrems 2 – Developments to Date Given the importance of SCC for EU/USA data transfers, there was considerable interest in this litigation. Eight parties sought to be joined to the proceedings as amicus curiae and the High Court accepted the applications of the USA, the Business Software Alliance, the Electronic Privacy Information Centre and Digital Europe, rejecting several other applications. On the last mention date in the commercial court NASSCOM, the Indian representative body for software companies (over 1,100 members), sought leave to move an application to be joined as an amicus. McGovern J rejected this on the grounds that the application was too late and that there was a need for finality in who could join. As is normal in the commercial court, the case is being closely case-managed and there is a series of deadlines for the parties to file defences and legal submissions, with a view to having a three-week hearing in February 2017. The matter is next listed on October 17th when Mr Schrems is expected to apply for a protective cost order, seeking client/solicitor costs. The first question that arises, is why will a case that is merely a procedure to getting a reference take three weeks in the commercial court? It appears that the DPC’s draft decision on which the case is based, does not fully conclude on the facts of the case and that the High Court hearing will be used to determine those facts. This point was raised by counsel for Mr Schrems, Eoin McCullough, SC, who argued that the matter should be fully determined by the DPC and then

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Autumn 2016 dsba.ie Gary Fitzpatrick BL is a practising barrister specialising in information law

referred to the High Court. Mr McCullough argued the case should be rejected by the High Court until such time as the DPC had made all the necessary factual determinations and then the High Court could refer a question. His application was rejected by McGovern J, largely on the basis that it came too late in the case and that Mr Schrems had fully participated for the previous six weeks. Yet this does raise an essential point. The DPC has significant powers of investigation and compulsion and it is likely that she has all the necessary powers to investigate any data transfers by Facebook Ireland to the USA. She does not need an expensive, slow and cumbersome High Court case to achieve the same end.

Plenary Pitfalls? In choosing to initiate plenary proceedings, the DPC has guaranteed that the court will have jurisdiction to make a reference. But she has also guaranteed that the parties will have the full use of all the court procedures, and this has the potential to complicate the case, possibly in the most dramatic of ways. For example, Mr Schrems has criticised the DPC for only seeking a reference on one of the legal basis for data transfers and not all of the remaining ones. Mr Schrems must now file a defence, but what is to stop him from introducing a counterclaim expanding the case to include other grounds that Facebook Ireland identify as a legal basis for transfers? Would it then be open for more third parties to seek to join as amici? McGovern J refused that application of NASSCOM on the grounds of delay and the need for finality. But with a broader case, would NASSCOM have grounds for a new application to join the proceedings? The three main parties to the case naturally have the right to seek discovery from each other. But it is also open to Mr Schrems to seek non-party discovery. For example, in Schrems 1 the applicant based his complaint to the DPC on the revelations of Edward Snowdon on a US mass surveillance programme. What is to stop Mr Schrems seeking access to confidential documents that underline the

Litigation/Data Protection

programme? Given that the US government is now an amicus in these proceedings, it can be argued that it has submitted to the jurisdiction of the Irish courts as per Fusco v O’Dea [1994] 2 IR 93 and could be forced to comply with such an order.

Alternative Legal Options The DPC had a number of other options. Firstly, she probably has the capacity to refer a question herself to the ECJ as she may be a “court or tribunal” under Article 267 TFEU (for more details see an article by this author in Data Protection Ireland Volume 9, Issue 4). This would have saved considerable time and expense and bypassed the Irish courts entirely. Secondly she could have used her powers of investigation to make whatever factual conclusions were necessary and if she felt that there was a breach of Mr Schrems’ rights, she could have issued a prohibition notice under Section 12 of the Data Protection Acts 1988-2003. Such a notice can prohibit the international transfer, or force the data exporter to take certain specified steps. Facebook Ireland Ltd could then have appealed that to the Circuit Court which could have referred a question to the ECJ if necessary.

In choosing to initiate plenary proceedings, the DPC has guaranteed that the court will have jurisdiction to make a reference

Conclusion The ECJ has put an obligation on the DPC to refer a question as to the validity of SCC if she considered Mr Schrems’ complaint was “well founded”. But the issue is how she does this. There is no doubt but that a plenary hearing in the High Court will get to the ECJ eventually. But this procedure is time consuming, costly and cumbersome. The most efficient option would have been for the DPC to refer a question herself. She likely has the jurisdiction to do so. The next best option would be for her to use her full powers to investigate the complaint and either uphold it or reject it. Either way the Circuit Court would have jurisdiction to make a reference. This route would have been quicker and cheaper. The plenary case is of huge commercial and legal significance, but it is open to creative actions by the parties that will be very interesting to watch over the coming months. P the Parchment 45

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The Ryan Report -

EU and Technology News EUROPEAN COMMISSION SIGNS AGREEMENT ON CYBER SECURITY On July 5th, 2016, the European Commission announced the launch of the new Public/Private Partnership on Cybersecurity that is expected to generate approximately €2bn worth of investment by 2020. This is part of a series of initiatives to equip Europe against cyber attacks and strengthen the competitiveness of the cybersecurity sector. As highlighted in previous articles in the Parchment, 80% of European companies have experienced at least one cybersecurity incident over the last year. This damages all companies whether they are big or small, and threatens to undermine trust in the digital economy. As part of the Digital Single Market Strategy, the Commission wants to reinforce co-operation across borders and to help develop innovative and secure technology products and services throughout the EU. The EU will invest €450m in the Public/Private Partnership and Cybersecurity, under its Research and Innovation Programme, Horizon 2020. Cybersecurity participants represented by the European Cyber Security Organisation (ECSO) are expected to invest approximately three times more. The aim of the partnership is to foster co-operation at the early stages of the research and innovation process and to build cybersecurity solutions for the various sectors. The Commission is also looking into a possible European certification framework for ICT security products. Many innovative European SMEs have emerged

in niche markets (e.g. cryptography) and in well established markets with new business models (e.g. anti-virus software), but they are often unable to scale up their operations. The Commission wants to ease access to finance for small businesses in this field and will explore different options under the EU Investment Plan. The Network and Information Security directive which is before the European Parliament presently already creates a network of computer security instant response teams across the EU in order to rapidly react to cyber threats and incidents. It also establishes a co-operation group between member states to support and facilitate strategic co-operation as well as the exchange of information, and to develop trust and confidence. The Commission has called on member states to make the most of these new mechanisms and to strengthen co-ordination where and when possible. The Commission will also be bringing forth proposals on how to enhance the cross-border co-operation in the case of a major cyber incident. There’s an evaluation process in place for a proposed European Union Agency for Network and Information Security (ENISA). The proposal and action plan finds its main roots in the 2015 Digital Single Market Strategy, the 2013 EU Cyber Security Strategy and the forthcoming Network and Information Security directive. It also builds on the recent communications on delivering the European agenda on security and countering hybrid threats.

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Autumn 2016 dsba.ie Greg Ryan is programmes director of the DSBA and he is chair of the Law Society Technology committee

EU/Technology

RETENTION AND ACCESS TO DATA, THE LATEST DEVELOPMENTS On July 19th 2016, an Advocate General, Saugmandsgaard Øe delivered his opinion in two joined cases called Tele2 Sverige/Lewis-Watson, which were triggered by the Court of Justice ruling in the Digital Rights Ireland case. Practitioners will recall the Digital Rights Ireland case in which a request was made by the Irish High Court to the European Court of Justice in the case of Digital Rights Ireland Limited versus the Minister for Communications, Minister for Justice and Others about the retention of data and access to that data. In short, the validity of directive 2006/24/EC of the European Parliament in respect of the retention of data generated or processed, was challenged and deemed incompatible with EU law. As a result of this judgment many member states which had put in place data retention obligations on the basis of the directive, were faced with the difficult question as to whether those data retention obligations were compatible with the right to privacy, and to the right to the protection of the personal data as is guaranteed by Article 7 and 8 of the EU Charter of Fundamental Rights. Immediately after the Digital Rights Ireland Ruling, Tele2 Sverige AB, which is a provider of electronic communications in Sweden notified the competent authority in that jurisdiction that it would no longer comply with Swedish national data retention obligations as it considered those obligations not to be meeting the conditions as laid down by the Court of Justice. This caused great concern for the national authority who ordered Tele2 Sverige to resume its retention of data. This was appealed before the Administrative Court in Stockholm and subsequently the Administrative Court of Appeal which referred the matter for preliminary ruling to the Court of Justice. At the same time in the UK, the 2014 Data Retention and Investigatory Powers Act was challenged before the English High Court and declared invalid on July 17th, 2015 because the data protection regime did not provide for adequate safeguards in order to protect the right to privacy and the right to protection of personal data as laid down in the charter. However, the Home Secretary has appealed that judgment and the Court of Appeal has referred the two questions to the Court of Justice for a preliminary ruling.

A submission was made by the Law Society of England and Wales in the conjoined case which particularly raised issues about professional secrecy and professional confidentiality. In reply, the Advocate General’s opinion in relation to the professional privacy aspect concluded that “to my mind, it would be desirable if the technology allowed, to exclude from the retention obligation data that is particularly sensitive in terms of the fundamental rights at issue in the main proceedings, such as data that is subject to professional privilege or data which makes it possible to identify a journalist’s source”. He went on to say that “next, independent review preceding access to data is necessary so that the data that is particularly sensitive in terms of the fundamental rights at issue in the main proceedings… may be dealt with on a case-by-case basis as indeed the Law Society of England and Wales and the French and German Governments have pointed out. Review preceding access is all the more necessary where it is technically difficult to exclude all data of this kind from retention.” The Advocate General went on to conclude the national legislation encompassing data retention obligations were obviously governed by EU Law which therefore triggered the application of the charter. Whether or not the charter governs the conditions under which national police or judicial authorities can access the retained data is less obvious because the relevant directive, Directive 2002/58 does not cover activities of the state in areas of criminal law. That leaves an issue open for the Court of Justice to address and it will be interesting to see how they rule on whether the charter indirectly applies to national rules regulating the access to the retained data. The Advocate General concluded that the relevant articles of the directives are to be interpreted as not precluding member states from imposing on providers of electronic communications services an obligation to retain all data relating to the communications where the necessary conditions are satisfied, which is for the referring courts to determine in light of all the relevant characteristics of the national regimes. He went on to list out the conditions which were available in the judgment and analysis of the AG opinion on FreeGroup.eu. the Parchment 47

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The Law Courts Revisited Roy McFadden was a Belfast solicitor and poet. Although we know little of the legal work he did from the 1940s to the 1980s, his literary legacy is much richer. Earlier this year Trinity College Dublin named a library in his honour and the Parchment thought it timely to republish one of his works on a legal topic. Keith Walsh looks back on the great legal bard that was Roy McFadden

R

oy McFadden practised throughout the troubles as a sole practitioner. He published a number of volumes of poetry and from 1987 until his death in 1999, was considered the north’s most senior resident poet, according to Sarah Ferris. An article in the journal of the Law Society of Northern Ireland in February/ March 2012 by solicitor Joe Rice describes him as having a successful legal career while at the same time always remaining conscious that as a writer and lawyer, he inhabited “two worlds”.

One of his best known poems is The Law Courts Revisited which is reproduced below with the kind permission of Lagan Press. It is impossible to read his poem without being brought back to his first visits to the Four Courts as an apprentice or to recall lonely afternoons there when the crowds have left or even to remember the terror of the central office ‘half a lifetime ago’. While McFadden may be talking about the law courts in Belfast, he could easily be recalling his time at the Four Courts in Dublin or in any courts of justice. P

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Autumn 2016 dsba.ie Keith Walsh is principal of Keith Walsh Solicitors, Crumlin. He is a past president of the DSBA

The Law Courts Revisited The side courts closed, Queen’s Bench and Chancery – Counsel gone Back to the burrow of their library, Litigants home To chew the frayed ends of the argument, Cleaners’ time To mop and scour the day’s sufficiency Of crumpled claim and counterclaim, Stubbed out or smouldering plea, And to restore Its impassivity to the Great Hall – Eight pendant golden lanterns inculcate A humour that refers You back to that same atmosphere When you, Though half a lifetime younger, seemed the same And you, Alone in the russet light with just The marble names of your profession’s dead Sentenced at Ypres, the Somme and Passchendaele, Carved on a wall’s reflecting apple sheen, Fraternise, and hesitate between A youth approaching from the lecture room And your advancing self; contextually Set in the italics of the mood. Snap out of it, you hear McKelvey say. Those were the days When terror and confusion ruled The Central Office, and apprentices Cringed in with papers for advice and got Red lugs from upstair despots. And Some sedentary sadists in the Seat Office peered at wills for pinholes, clips Rusty implications, and required Affidavits of redemptive prose. And: That old warlock with the flaming face And stick-supported legs, who jokers said Punctually beat his passive clerk around The clock to break the tedium; and, enraged, Shouted Shut the Door when you’d just knocked. In retrospect, material for a laugh. No laughing matter then, when you contrived To cut through paper jungles to My Lord.

Stalked through the corridors. I tell you, Mac, Even their pens clicked upright to alert Till after he had passed. But – bear with me – The sweetest memory is of ’45, Election Day remember, when we were Part of an amazed majority. Ecstatically recall Their worried wireless Bellowing news of Labour landslides and Staunch Tory strongholds taken. Masterful, I brusquely cautioned them for dallying: Hurry along, or you’ll be nationalised. Litigation’s disguised violence. Was it McKelvey or yourself who thrust Anarchic horn into the prim debate? Then, goring heifers for the hell of it: Every judgment smacks of blasphemy. Give me facts, the barrister Admonished, ruffling out his brief; Beyond him, the gestating fact Of his shot body on the floor. Humanity’s defaced by uniforms. Cleric, soldier, policeman, judge, And masquerading poet are Insignia more than men; and note The nomenclature too: for while Gerard Manley Hopkins could With all respect address his God as sir, An ageing man in wig and gown Becomes My Lord, as if His elevation truly did convey Him upwards to Jehovah, L.C.J. Not all of them used politics to climb On to a local lintsack; but You’ve heard the talk of dogged canvassers Travelling a circuit of constituencies Seeking adoption, jaunty hat in hand; Downing democratic pints in pubs, Jolly with beasts and besoms on the farm, Tin-hatted on the site or factory floor, Clucking encouragement to battery hens; And, unselfconsciously, With party men in some provincial hall Mothy with flags and banners, bend Their eloquence To all inelegant cause: a curious way To prop a ladder to the judgment seat.

I am a social engineer He said with some acerbity In answer when you asked him what A lawyer’s special role might be. But does he question what’s amiss With the machine he services?

A late young barrister flops in Down from the Crumlin Road, Bound for a consultation or His overtime’s workload; And earlier in the day you’d seen New white wigs at the door Being photographed while they were still Immaculate and clean.

But once in, what was it, a year, Those upstair spiders in their offices Prepared to meet their god when the Lord Chief

And you’d reflected on your prentice years Without much rancour, though you gave too much. Your main regret the limits of the job,

Nostalgia

Where people sit as clients, losing face In the transaction. But, opposed to that, You never looked for presidential chain, Or wore a bowler hat at funerals, Or drank politely, or completely lost Contempt for commerce once you’d learnt its style. You sound like Hewitt, Mac, McKelvey says. Sound poet, who picked out your crooked smile. The ambiguity Of seniority Permits you to explore Those upstairs offices, Where, after thirty years, Fresh idioms demonstrate A new permissiveness. In the Writ Office now Bosoms and beards abound; And one’s content to queue To stamp a document Behind tight bottoms and Loose shoulder-lengths of hair. But don’t be foxed, McKelvey chides, By an updated style: The power and prejudice are there Still, even when they smile. The Law is not so much an ass As a bland crocodile. 4.30 now. The youth has disappeared. You have translated him. There, overheard, The eight jowled lanterns are your witnesses. Keep handy in your briefcase A summons & a shout; Not everyone who comes here Is certain to get out.

Roy McFadden the Parchment 49

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DATA PROTECTION – THE ADOPTION OF THE NEW RULES CONTINUES Greg Ryan

Since August 1st 2016, companies in the US will be able to certify with the US Department of Commerce. The Privacy Shield was adopted by the EU Commission on July 12th 2016 for the transfers of personal data from the EU to the US. The adequacy decision has been notified to the 28 EU member states and therefore it enters into force immediately. The programme will be operated by the US Department of Commerce. Businesses that have previously been in the Safe Harbour system, cannot automatically transfer to the new framework, but have to assess their compliance against the new, more rigorous requirements. It is suspected that a legal challenge to the Privacy Shield will be forthcoming, but as of the date of writing, no papers have been lodged. The key points of the agreement are as follows: 1. The Department of Commerce will regularly review participating American companies as to their compliance with applicable data protection rules. 2. If companies do not comply in practice with the rules, they will face sanctions and removal from the Privacy Shield list, which will cause them considerable difficulties with the use of data from EU consumers. 3. If there are onward transfers to third parties by companies participating in the scheme, there

MURDOCH AND HUNT’S DICTIONARY OF IRISH LAW 6th edition, Bloomsbury Professional, 2016, €165

Over seven years have passed since the fifth edition of what was then Murdoch’s Dictionary of Irish Law was published. The new edition written by solicitor

will be an obligation to provide the same level of protection. Concerning data retention, the principle that the companies may keep personal data only so long as it is necessary remains, and expressly as long as it serves the purpose for which the data was collected. To regularly monitor how the arrangement is functioning there will be an annual joint review conducted by the European Commission and the US Department of Commerce, together with the associate national security experts from the US and the European data protection authorities. The redress procedures are set out in more detail. In the first instance, the complaint must be dealt with by the company itself. Once escalated, Privacy Shield companies can opt between free-of-charge, alternative dispute resolution procedures, or voluntary submission to the oversight of the EU data protection authorities. Individuals can in any event go to the EU data protection authorities who will channel the complaint to the Department of Commerce and/or the US Federal Trade Commission (FTC) to ensure complaints are investigated and resolved. The last resort would be an arbitration mechanism available. The supporting documentation for the above is available on the Europa. eu website. Greg Ryan is programmes director of the DSBA and he is chair of the Law Society Technology committee

Brian Hunt with Henry Murdoch as consulting editor is over 500 pages longer and contains over 270 new entries. The format is similar to the fifth edition, with definitions (over 10,300 with 1,000 updated entries), appendices of law report abbreviations, listing of Law Reform Commission reports, amendments to the Constitution (including defeated amendments) and a chart of the Irish justice system and books on Irish law referred to in the dictionary. The chart on the Irish justice system is much changed with the introduction of the Court of Appeal and the new Workplace Relations Commission (WRC). The dictionary is a breathtaking work of legal scholarship and fully achieves the aim of the author to both ‘serve as a starting point for legal research and to serve as a legal subject matter index which points the way towards richer legislative, judicial and other resources’. Mathew Engel in a review of the work involved in compiling the Oxford English Dictionary likened it to ‘painting the Forth bridge’ meaning a neverending and arduous task. The equivalent is true for Murdoch and Hunt’s Dictionary. It is the first stop on any quest to discover unknown areas of law and unknown words. An essential part of any lawyer’s reference library, even if it is the only book in the library! Keith Walsh, principal, Keith Walsh Solicitors, Crumlin

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DSBA News

Personal Injury Claims - Is the Tide Turning? O’Brien Lynam Solicitors teamed up with new firm McDermott Minehane Solicitors in Cork to host an event with Davy Stockbrokers in Dublin’s Marker Hotel on June 16th 2016. The event was chaired by former President of the High Court, Nicholas Kearns. Emer Lang, analyst with Davy discussed the rise in awards being given out by the High Court and the effect this has for insurance companies when placing money for investment. The Russell decision

was considered at length in this context and the future of investment for insurers with particular focus on insurers getting back to profitability. Emer Lang, an analyst at Davy noted that the average bodily injury award payment in Ireland in 2015 was €22,878 compared with £10,680 (€13,460) in the UK. Insurance Ireland says the average Irish whiplash award, which make up most of motor insurance claims, is €15,000, compared with €5,000 in the UK and €3,000 in France and Spain. David Nolan, SC, and former chairman of the Bar Council of Ireland discussed the approach of the courts to personal injury claims over the last 12 months. David in particular looked at the Court of Appeal and its approach to general damages in cases not involving catastrophic injuries. The main reason for rising court costs, according to David Nolan, is an increase in jurisdiction of various courts in 2014, when the maximum Circuit Court personal injuries award rose from €38,000 to €60,000. “Talking anecdotally to my colleagues, to solicitors, to the judges, they absolutely

agree that the change in the jurisdiction was the one single most important factor.” Judge Kearns indicated that the market should pursue fraudulent claimants at all costs. The issue has been thrown into sharp relief by a recent UK study by Axa, the French insurer, which found that up to a third of respondents have either committed insurance fraud or thought it was justifiable to exaggerate a claim. It was noted that Ireland’s insurance industry has been in a state of turmoil in recent years for a number of reasons. Motor claims have been rising as more cars take to the roads in a recovering economy. Court awards have been increasing. And insurers have been less able to rely on investment income to cushion the blow, as they grapple with record-low global bond yields. In an effort to return to profitability, insurers have hiked motor coverage rates by 35 per cent in the year to May, according to the Central Statistics Office, with house insurance rising by almost 10 per cent. “Something’s got to give,” Mr Justice Kearns told the conference.

Probate and Genealogy Association Launched A new association has recently been launched for the industry of probate genealogy research with the aim of providing a single authoritative source of opinion and advice. The International Association of Professional Probate Researchers, Genealogists and Heir Hunters (IAPPR) is the brainchild of Finders International, who featured heavily in the hit BBC1 TV show Heir Hunters earlier this year, and are now filming again for a new series. Daniel Curran, founder member and media consultant of the IAPPR said: “I have been searching for a viable international and professional association for my company for years with no success. The IAPPR will achieve worldwide attention and

international support without a doubt – and the public and legal profession will stand to benefit enormously.” There are amateur associations for genealogists and for those that traditionally trace their family trees, but the IAPPR will support the corporate world of international probate research, that focuses on tracing the missing or unknown beneficiaries to unclaimed estates, assets and funds. Louise Lewis of Blake Morgan LLP, a leading firm of solicitors in the UK said: “As a professional, I am regulated by an independent body. Regulation safeguards the public because it ensures that I have to meet a minimum standard of professional conduct and ethics. It provides peace of mind for those dealing with me.

“Sadly I have seen what can happen to clients who deal with unregulated service providers and how expensive and distressing it can be when things go wrong. I welcome Finders voluntarily signing up to a code of conduct, confirming that they act in accordance with very high standards. It shows a commitment to protecting their clients and to providing a sustained high quality of service.” The IAPPR is gaining significant interest from heir-hunting firms around the globe that are seeking to reassure the legal world of their professionalism and commitment to service of the highest standard. For further comment or enquiry, please contact Padraic Grennan of Finders International, Suite 5073 Unit 1, 77 Sir John Rogerson’s Quay, Dublin 2, or email contact@iappr.org

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DSBA News

In House Lawyers Seminar

Norman the Great Not too many law clerks in Ireland are doing their job for over 65 years and still going. Norman St John is one such star and he has dedicated his life to the service of the legal profession. Norman has made such an impact on those who have worked with him that the law firm St John Solicitor of Lower Bridge Street, Dublin 8 named the practice after him as a tribute. Having started his career as a law clerk when he was just 16, Norman is still attending every week at the central office more than six decades later. He is a legend in legal circles and is an instantly recognisable figure in the Four Courts. Partner in the practice Aine Hynes said “Norman St John embodies the qualities that we admire most; honesty, integrity, an unrivalled work ethic, extraordinary professionalism and an unwavering commitment to our clients.” The Parchment congratulate Norman on an exemplary legal career and a dedication to the profession.

On June 28th last the In-House Lawyers and IP and Technology committees jointly ran an early morning seminar on the very topical subject of data protection. The event was kindly hosted by Mason Hayes and Curran Solicitors who generously provided pre-event breakfast. Barrister Fergal Crehan, BL, of the Hit Team gave attendees a stimulating talk on Ireland as a Global Data Centre. MHC associate solicitor Oisin Tobin updated the audience on recent data protection case law from the Court of Justice of the European Union. And inhouse lawyer and author Denis Kelleher gave his insights and experience on data protection and litigation. A stimulating question and answer session followed. Paul Ryan, Chairperson of the DSBA InHouse Lawyers Committee

Commercial Contracts Seminar On June 29th 2016 the DSBA In-House and Commercial Law committees jointly ran a seminar on the topic of Commercial Contracts and Software Licence Agreements. The event was hosted by Byrne Wallace Solicitors in their stylish top floor seminar room and, in addition to generously providing these facilities and post-event refreshments, partner Darren Daly stimulated the minds of participants with his presentation on Anatomy of a Software Licence. Brian Connolly, director of legal services at Accenture shared his experience as in-house counsel and gave very practical advice from that perspective. Joe Jeffers, BL, updated the audience on recent developments for indemnities and guarantees in the commercial court. A lively question and answer session was followed by networking over cheese and wine! Leonora Mullett, DSBA In-House Lawyers committee

Commercial Litigation Update The commercial committee’s commercial litigation update 2016 took place on June 23rd at Dublin’s Radisson Hotel, Golden Lane. It attracted a healthy attendance who listened to interesting and enlightening presentations on a broad range of issues. Gerry Kelly of Mason Hayes and Curran provided an intellectual property law update. As well as addressing recent cases on substantive IP law issues including design rights, copyright and patents, he also considered remedies and reliefs available, and particularly highlighted the difficulty of obtaining interlocutory injunctions in Ireland, as well as looking at the availability of confidentiality clauses in the context of discovery in IP disputes. Alan Keating, BL, spoke about applications that might be considered as part of a commercial litigation strategy, including security for costs and dismissal of proceedings, and Alan also looked at recent Irish and English case law on penalty clauses. The final formal presentation was delivered by Lisa Broderick of DAC Beachcroft who spoke about the Court of Appeal from a practitioner’s perspective. Her talk identified a number of practical ‘golden rules’ for litigants in the Court of Appeal including

guidance in relation to the directions hearing, substantive hearings, how to deal with settlements and leapfrog appeals to the Supreme Court. The final session was chaired by Judge Finlay Geoghegan who subsequently gave the attendees the benefit of her judicial perspective with regard to the Court of Appeal and how practitioners can assist the court (and, thereby, their clients). She particularly suggested a party should consider consenting to an extension of time for lodging an appeal if such an application is likely to succeed in order to avoid unnecessary costs. She also recommended that in framing notices of appeal, parties should consider carefully the grounds on which they rely and be as specific as possible with regard to factual and legal issues. She also reminded practitioners that before seeking a stay in the Court of Appeal one should previously have sought one in the High Court. She also explained that priority is available in the Court of Appeal but is not generally given until submissions have been filed. Finally, practitioners can expect a more detailed practice direction with regard to appeals in order to facilitate the work of the Court of Appeal. Gearoid Carey, DSBA Litigation committee

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Pat Culleton, CEng CPhys CSci MIEI MInstP

27/09/2016 12:54 03/10/2016 12:05


DSBA News

Law Society CPD requirements The new CPD regulations have imposed further requirements particularly on sole practitioners and the onus is as always, on the individual practitioner to make sure they don’t fall foul of the new regime. For a solicitor who is not a sole practitioner or a compliance partner, and or a money laundering compliance partner, the CPD requirement for 2016 is 18 hours. Those 18 hours have to include a minimum of three hours management and professional development skills, and a minimum of two hours on regulatory matters. For a solicitor who is a sole practitioner or a compliance partner or is the anti-money laundering compliance partner, the CPD requirement for 2016 is 18 hours to include a minimum of three hours management and

professional development and a minimum of three hours regulatory matters, an increase of one hour over the previous category of solicitors above, and of which at least two hours must be accounting and anti-money laundering compliance. There is now a maximum limit of seven hours CPD which can be completed in a single day and a maximum of 50% of the minimum CPD requirement may be claimed for eLearning or writing. The minimum CPD requirements may be reduced for a senior practitioner, maternity leave, due to illness or part-time practice or part year practice. However, the minimum CPD requirement for two hours regulatory cannot be reduced. In the event of a failure to comply with

the annual CPD requirements, there is an automatic audit provision for the following two years, whereby the solicitor must provide proof of compliance with the CPD obligations for a period of two years. Meetings of committees and/or working groups of the Law Society and other lawrelated professional bodies (the DSBA) and/ or performing adjudicative functions are permitted to claim up to a further maximum of seven hours CPD in any category. For further information, the CPD booklet which runs to some 53 pages is available for download from the Law Society website. Greg Ryan is principal of Greg Ryan Solicitors and is programmes director of the DSBA

Pre-Contract Title Investigation The Conveyancing committee of the Law Society is considering moving towards making a recommendation that all title matters are investigated pre-contract instead of post-contract as has been the position until now. This will be a significant change in conveyancing practice if it is to proceed. The rationale for the current practice is that solicitors do not want or need to spend too much time investigating all title matters pre-contract, in case the transaction might not ultimately proceed to contract. The downside of a move to a full investigation of all title matters precontract would include that the cost of title investigation is incurred before a binding contract is in place. The reasons a change is being considered include:

• There is a perceived disconnect between the traditional conveyancing theory as reflected in the standard contract for sale and what is occurring in practice, in that extensive title enquiries are routinely being raised pre-contract. • There is a view that this gives rise to timeconsuming duplication of work. • The increase in the number of precontract enquiries is due to the large amount of new legislation that affects conveyancing that is not covered by existing contractual warranties. • Pre-contract enquiries protect purchasers. • The move to eConveyancing will require all title matters to be addressed precontract and any move at this time to pre-contract title investigation would be an interim step.

• There is no uniformity of pre-contract enquiries. • It is envisaged that if there is to be a recommendation to move to pre-contract investigation of all title matters it would be on the basis that a standard set of requisitions on title with replies would be issued by a vendor’s solicitor along with the contract for sale and a purchaser’s solicitor would be entitled to raise any additional matters pre-contract. If you have a view on the above or related issues, the committee would like to hear from you. You can make your submission to the following dedicated email address set up to get feedback from the profession on this topic: precontractenquiries@ lawsociety.ie

Kildare Solicitor Re-elected as Vice-Chair of American Association for Justice International Section A Naas-based personal injury solicitor, Liam Moloney, has been re-elected as vice-chair of the International Practice section of the American Association for Justice (AAJ) at the organisation’s recent annual convention in Los Angeles. AAJ is the world’s largest injury lawyers association with over 23,000 members and is a powerful group advocating for the rights of accident victims. It regularly lobbies

governments to ensure injured people have access to fair compensation systems to get justice in their individual countries when they are injured through the negligence and misconduct of others. The Association’s members provide expert advice in areas such as pharmaceutical, medical device, aviation, tourist and medical malpractice litigation claims. “I am delighted to have been re-elected to

this position. With the increased globalisation of commerce, communication and travel, the practice of law is becoming more international. As an officer of the AAJ, I can help my clients to get access to the most up-to-date research on medical negligence and product liability claims. I can also get immediate access to personal injury lawyers throughout the US and Canada for clients who may have been injured there,” says Moloney.

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DSBA Golf Society

The DSBA Golf Society held its annual Captain’s Prize outing on September 15th 2016 at the K Club (Palmer/Ryder Cup course). A most enjoyable day was had by all.

Photography: Michael Finn

Left to right: Colleen O’Neill, Mary McAlinden, Fiona Duffy, Noreen Costello

Left: Mary McAlinden. Far left to right: Bernard McMahon, Philip O’Connor, Tom Simpson, Martin Hayden

Right: Colm Costello, Robert Ryan, Richard Grogan. Far right: David Synnott, David Tansey, Robert Connolly

Left: Pat Coady, Hugh O’Neill Far left to right: Ken Knightly, Ben McGahon, Michael Knightly, Eamonn Shannon

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Autumn 2016 dsba.ie Photography: Michael Finn

DSBA Property and Litigation Seminar

The DSBA Property and Litigation committees jointly hosted a CPD seminar entitled Residential Tenancies Board (RTB) Update 2016 on July 5th 2016. The speakers were Angela Becker, Becker Campion Solicitors; Una Cassidy, BL; Rosalind Carroll, director of RTB and Brian Ormond, McDowell Purcell Solicitors.

Above left to right: Rosalind Carroll, Una Cassidy, Brian Ormond, Mr Justice Gerard Hogan, Angela Becker. Left: Clodagh Gill, Smyth & Son; Fiona Shipsey, Hayes Left: Christine O’Sullivan, Byrne Wallace; Laura Horan, MacGeehin Toale; Kelly Mackey, Byrne Wallace. Far left: Hilda Mannix, Ronan Daly Jermyn; Joanne Bannon, McDowell Purcell; Aidan O’Driscoll, LK Shiels

Right: David Walley, David Walley & Co; Paul Diamond, Paul Diamond & Co. Far right: Ciaran Lawlor, Lawlor O’Reilly & Co; Patricia Lord, Lord Legal Cost Accountant; Brendan Hyland, B Hyland & Co

Left: Michelle McArdle, Bailey Homan Smyth McVeigh; Siobhan Whelan, Bailey Homan Smyth McVeigh; Aodhnait Burke, Bailey Homan Smyth McVeigh. Far left: Mr Justice Gerard Hogan, chair; Kathryn Ward, RTB

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DSBA Annual Conference Business Session

The DSBA held a very successful annual conference in Washington DC, USA from 21-25 September with over 150 delegates attending. The Business Sessions/CPD was held in the law offices of Skadden Arps. Mr. Justice Frank Clarke of the Supreme Court EU Commissioner to the USA David O’Sullivan were among the speakers.

Left: Erich Schwartz, Skadden, Colm McInerney, Skadden, Aine Hynes, Mr. Justice Frank Clarke, Betsey Hellman, Skadden, David O’Sullican, EU Commissioner to US, and DSBA President Eamonn Shannon

Left: Margaret McGinley, Michelle Linnane, Michael Moran Far left: Niall Cawley, John O’Malley, Paul Ryan, Eamonn Shannon

Right: Patricia Harney, Patrick Groarke Far right: Caroline Bergin Eamonn Shannon, Fergus Gallagher, Michael Webb

Left: Orla Coyne, Erich Schwartz, Skadden, Colm McInerney, Skadden Far left: Mr. Justice Frank Clarke, Eamonn Shannon

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Autumn 2016 dsba.ie Photography: Carol Clayton

Above: Barry Rafferty, Kryan McGinley, Eamonn Shannon, Robert O’Reilly, Kevin O’Higgins

Above: Tim Shannon, Joe Clancy, Dermot Simms, Maurice Joy Left: Colm McInerney, Skadden, Betsy Hellman, Skadden, Erich Schwartz, Skadden Far left: Colette O’Malley, John Hennessy

Right: Shiela Curran, Mary Hegarty, Marian Petty Far right: Meggan Maromonte, Skadden, Colette O’Malley, Eamonn Shannon

Left: James McCourt, David O’Sullican, EU Commissioner to US Far left: Kevin O’Higgins, Deidre O’Sullivan

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DSBA Annual Conference

The DSBA held a very successful annual conference in Washington DC, USA from 21-25 September with over 150 delegates attending. The Gala Dinner was held at the Cosmos Club and guest speaker was Mr. Justice Frank Clarke of the Supreme Court.

Left: Robert Ryan. Manus McCafferty Far left: Emer O’Riordan, Rory O’Riordan, David Bergin, Brenda Cullen

Right: Shiela Curran, Joan Doran, Diego Gallagher Far right: Anita Gallagher, Olga McGarry, Fergus Gallagher

Left: Maura Derivan, Niall Cawley Far left: Susan Martin

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Autumn 2016 dsba.ie Photography: Marty Katz

Above: Ruadhan Killeen, Orla Coyle, Judge Frank Clare, Aine Hynes, Eamonn Shannon, Paul McGarry SC, Katy Kozdemba, Stuart Gilhooley, Ken Murphy Left: Frank Egan, Fidelma Gilhooley

Right: Marie Therese Lacy, John Lacy Far right: Mr Justice Frank Clarke, Caroline Shannon, DSBA President Eamonn Shannon Left: Mr. Justice Frank Clarke Far left: DSBA Vice President Aine Hynes

Right: Garett Robinson, Georgina Robinson, Eimear O’Doherty, Michael O’Doherty Far right: Richie Bennett, Patrick Derivan

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Alan Murphy is managing partner of Eversheds

Closing Argument Alan Murphy

Know What You Wish For

U

S presidential candidate, Donald Trump tweeted recently that people will call him ‘Mr. Brexit’ after the US presidential election. He could be right. On speaking to colleagues just back from the US, there is an increasing realisation that the winds of discontent that firmly blew the UK out of the European Union have shifted direction and are now potentially brewing up a storm in the US. There are certainly a lot of similarities between what appear to have been the key drivers behind the UK’s BREXIT vote and the US general election; drivers that seem to be rooted in the populist vote, with people voting against the establishment generally, as opposed to voting for or against a particular candidate. Or indeed for or against membership of the European Union, in the case of the BREXIT vote. The BREXIT vote became less about European Union membership and more of a means for people to channel and express, in a very public way, their fears, frustrations and concerns. ‘Let’s Take Back Control’ and ‘We Want Our Country Back’ were slogans very effectively used by the Leave campaign in the run-up to the UK’s BREXIT referendum. In doing so, the Leave campaign resurrected a sense of nationalism, some would argue pride and resilience, some xenophobia, that had become diluted over 40 years of EU membership. Migration was certainly, and continues to be, a sensitive and difficult issue for the UK. The European Union’s migration policies have to shoulder some blame for this also. There is no doubt that the results of the BREXIT vote were a wake-up call for

the European Union. Changes are needed, and needed soon. There are those who would argue that the recent Apple decision is, in itself, a validation of the vote to Leave. Mr. Trump’s campaign slogan, on the other hand, proudly proclaims ‘Make America Great Again !’. It’s a slogan that, similar to those used by the Leave campaign, appeals to the populist vote, to the people who feel left behind, marginalised and forgotten about. His now infamous claim that, if elected, he will build a wall on the southern boundary with Mexico to keep ‘criminal aliens’ out, again trumpets a sense of nationalism, some would argue pride and resilience, some xenophobia. Whatever is your personal view and belief, there are two absolutes. The first is that, not only are we entering into a period of deep uncertainty, but also one of great division. When speaking with US colleagues I get the sense that populations in areas like New York and Washington, and similar areas across the US, that are predominately business hubs, just don’t get what the Trump campaign is driving at, or what it is tapping into. Similarly, the business population of London, an area that voted overwhelmingly to stay in the European Union, have lost touch with the sentiment held across large parts of the rest of the UK in relation to the BREXIT vote. There is also no doubt that the UK’s departure from the European Union hits at the very heart of an equilibrium that has maintained stability and peace in Europe for more than 50 years. The Trump campaign appears to be successfully trapping, and utilising, the very same winds that blew the UK from the EU.

There is an increasing realisation that the winds of discontent that firmly blew the UK out of the European Union have shifted direction and are now potentially brewing up a storm in the US

Someone once said to me; “in a referendum, the ‘Yes’ side always has an uphill battle, as it has only one agenda to push. Whereas the ‘No’ side can represent a mixed bag of issues, concerns and emotions.” While the US presidential election isn’t a referendum, the Trump campaign seems to be successfully holding itself out as representing that mixed bag of issues, concerns, emotions, fears and frustrations. Tapping into a sense amongst a very large group of people, who feel neglected and left behind, that the US needs a severe change of approach. And perhaps, rather than going with the safe bet, it’s time to take a gamble? The second absolute is the importance of each and every vote. The BREXIT outcome was impossible to predict, and the US election is equally as difficult. It’s also important to vote for something in which you believe; to vote simply to protest against something in which you don’t believe, is not sufficient. It creates a vacuum that is devoid of guiding principles or guiding beliefs; a vacuum that is absent of possible solutions or possible answers, within which historically constructive, peace-affirming leadership has found it difficult to thrive, at a time when such leadership is needed, even craved, more than ever. Once the inevitable momentary satisfaction of having had a protest heard has passed, there is the sinking realisation that a new establishment has to be created. A new establishment that will have just as many flaws as the previous one, that will take a lot of time, effort and energy to build and that will ultimately prove to be unsatisfactory. P

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