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D UB LIN SOLICITORS’ B AR ASSOCIATION MAGAZ INE | AUTUMN 2017 | ISSU E 73

McKENZIE FRIEND OR FOE? New Courts Practice Direction

PAUL McGARRY SC CROSS-EXAMINED NEW FAMILY LAW CODE OF PRACTICE

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MITIGATING TITLE LOSSES SOFTER LANDINGS

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Autumn 2017 dsba.ie

From the Editor

W

elcome to the autumn edition of the Parchment. The new Code of Practice on Family Law in Ireland is to be warmly welcomed and all practitioners in this area should familiarise themselves with the new code. Keith Walsh in his article on page 16 gives the background to the new code’s arrival. The 30-page booklet can be downloaded from the Law Society’s website. It was a pleasure to meet with the Chairman of the Bar of Ireland, Paul McGarry, SC for this edition’s Cross Examination interview. With a stable of over 2,000 barristers, the Bar of Ireland faces some of the same challenges as we solicitors do. Our colleagues at the Bar work side by side with many of us and Paul McGarry, SC is an able commander in chief for his Law Library constituents. I take particular joy in seeing my fellow county man, John O’Malley appointed as the Revenue Sheriff for County Mayo. As Julie Doyle reports on

page 6, John leaves the capital after some 15 years and heads home west to familiar pastures. I am especially glad to welcome back Stuart Gilhooly to the Parchment after his sabbatical as President of the Law Society. He returns to page 64 for the Closing Argument which is well worth a read. Later this month, Áine Hynes steps down as President of the DSBA and Robert Ryan becomes the new President. I would like to wish Aine every success for the future and congratulate her on a great year at the helm of this great association. She was an effective leader; a marvellous host and got results which will have lasting impact on practitioners. We salute you Áine!

John Geary jvgeary@gmail.com

DSBA COUNCIL 2016/2017

ROBERT RYAN DSBA Vice President

GREG RYAN Treasurer Chair - Commercial Law Committee

ELAINE GIVEN Honorary Secretary

TONY O’SULLIVAN Programmes Director

JOSEPH O’MALLEY Chairman of the Litigation Commitee

DIEGO GALLAGHER Chair - IP and Technology Committee

SUSAN MARTIN Chair of Family Law Committee

JOHN O’MALLEY

MATTHEW KENNY

NIALL CAWLEY

LAURA HORAN Chair of Younger Members’ Committee

PAUL RYAN Chair of In House Committee

JOAN DORAN

KILLIAN O’REILLY Chair of the Litigation 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.

ÁINE HYNES DSBA President

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 Caron Flynn T: 01 707 6022

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

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.

WHEN YOU HAVE FINISHED WITH THIS MAGAZINE PLEASE RECYCLE IT.

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Autumn 2017

Contents 6

20 Minutes with....... John G. O’Malley Julie Doyle catches up with former DSBA Council member and new Revenue Sheriff for County Mayo

10

What Now for Britain and Ireland?

14

McKenzie Friend or Foe?

16

May you Live in interesting Times

18

Loan Book Sale Issues

I think there is still way too much flexibility given to the government, who have the actual final decision page 26

CROSS EXAMINED... PAUL McGARRY

Terence O’Connor looks at the Impact of the UK Government’s White Paper on Brexit and what it may mean for Ireland

Keith Walsh assesses the New Practice Directions from the Presidents of the Circuit Court, High Court & Court of Appeal

Keith Walsh reports on the new Code of Practice on Family Law and why it was so badly needed

Grainne Fahey, BL warns parties in litigation involving assigned debts and securities to check the fine print

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 2017 dsba.ie

Contents

REGULAR FEATURES 01 Editor’s Note 04 President’s Message 44 In Practice 46 News 50 Photocall 64 Closing Argument

10 22

Minefield of Traps

26

Cross Examination

32

Are you Ready to Go the Way of the Yellow Pages?

Richard Grogan warns colleagues about some pitfalls when bringing or defending cases under the National Minimum Wage Act

John Geary talks to Paul McGarry SC, Chairman of the Bar of Ireland

Flor McCarthy says that the writing is on the wall for many legal practices if they don’t change and adapt

34

Lis Pendens

36

High Court Refers Data Protection Case to the EU

32

James Meighan examines the hot topic that is Lis Pendens

Jeanne Kelly and Peter Bolger report on the recent case of Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems

38

Supreme Court Upholds significant Bullying Case Ciara McMahon profiles the recent case of Ruffley v St. Anne’s School

42

Cryopreservation Ben Mannering examines a recent UK case where a terminally ill 14 year old girl applied to Court to have her body cryopreserved after death

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Message from the President

Punching above our weight

T

his autumn edition of the Parchment marks my final message to you as President of the Dublin Solicitors’ Bar Association and it hardly seems a year ago since I first took office. It has been a turbulent time in world politics, but the world and legal business has not stopped spinning. We at the DSBA have been right there with it. It has been my great honour and privilege to serve as your President in this busy and successful year of DSBA engagement with the Legal Services Regulatory Authority, the judiciary, the Bar Council, the Law Society and bar associations around the country and indeed outside of the jurisdiction. I commenced my Presidency committed to building bridges and to have our voice count where it matters. The DSBA punches far above its weight; and we do this with a skeleton staff, headed by the indomitable Maura Smith. And we do this thanks to the great enthusiasm of you, our members, the invaluable assistance and guidance of our past Presidents, and most especially we do this thanks to our current Council and committee members. Our membership continues to grow; we have helped practitioners, not just in Dublin, but throughout the country. I have been heartened to hear from practitioners, both in Dublin and around the country, of the positive impact of High Court Practice Direction 71 on their businesses and their employees. As you will know, this Practice Direction means that a reasonable proportion of costs can be recovered almost immediately after a Cost Order is made. However, it hasn’t all been hard work. We are just back from our annual conference in Santiago de Compostela. The Hostal Dos Reis Catolicos provided the perfect setting for colleagues to get to know each other a little (if not a lot!) better and go about the business of representing our clients’ best interests in a less adversarial fashion. The pressures on solicitors are immense and quite frankly, we have it hard enough without being hard on each other. In other news, I want to congratulate John O’Malley, council member for his appointment as Mayo County Sheriff and to thank him for all his work on Council this year and as Chair of our Commercial Law Committee. I also want to congratulate Mr Justice Frank Clarke on his appointment to

the highest judicial position in the land and to thank him for taking time out to launch our new Employment Law Committee. He has always been a great support to the DSBA and indeed to all in the legal profession – he is approachable and friendly while balancing these skills with extraordinary intellect. Finally, I want to thank Maura Smith without whom the DSBA world would stop turning; the officers; our council members; committee chairs and committee members; for the extraordinary work they have done this year for the benefit of our members. I am pleased to report that we have reduced our costs ensuring that the finances of the DSBA are in good shape for our incoming

President, Robert Ryan. The DSBA will be in very good hands - Robert Ryan has been an integral part of the DSBA Special Taskforce on Legal Services Regulations Act and led our submissions on limited liability partnerships. As for me, well I have always had a soft spot for a good cause. Representing and promoting the interests of the profession is one such good cause and I will continue to sit on DSBA committees and to represent your interests where I can. It has been an honour. So long and thanks for all the fish. Áine Hynes, DSBA President

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Back in Town Castlebar born solicitor John G. O’Malley, has been a DSBA council member since 2014. He is a member of the Law Society Regulation of Practice Committee and the former Head of Legal for Avantcard. John has just been appointed Revenue Sheriff for Mayo. Julie Doyle, a fellow county person met up with John to discuss his impending role

Congratulations John on your new appointment! Thanks Julie. It is a great privilege to be appointed as Revenue Sheriff for my home county. When did you qualify and where did you commence your career? I qualified from Blackhall in Easter 2002 having completed the first half of my apprenticeship at PJ O’Driscoll & Sons, South Mall, Cork and the second half of my apprenticeship at McKeown James Solicitors, then located in Fitzwilliam Square, Dublin. After I qualified, I joined Orpen Franks Solicitors in Burlington Road where I practised in all areas of litigation (including debt recovery) and a smattering of commercial law. In late 2005 I joined Chartered Accountants Ireland as Head of Professional Conduct. Who has had the most influence on your career and why? I cannot say that there has been any one person who has had a dominant influence on my career. Rather, a host of experiences – some good, some not so good - have helped shape and influence my career. For

example, my career in litigation helped me to hone my negotiation skills and have an appreciation for the virtue of patience. My career in Avantcard has given me an appreciation of the importance of paying attention to detail in contractual drafting and of standing over one’s decisions and advice, even when pressure to deviate opposite is overwhelming. My career at the Chartered Accountants Ireland and IAASA have given me an appreciation for the art of professional regulation and the nuances of how the public service works. How did your interest in the Sheriff position arise? I had been keen to come home to Mayo for the past few years, once the appropriate opportunity presented itself. I love Dublin, its amenities, choices and anonymity, but the costs of raising a family there are somewhat prohibitive. Luckily, my wife Eibhlin is also from Mayo, so our returning back west was a no-brainer. As it happens, my initial interest in the Mayo Sheriff position came about at this year’s DSBA annual judges’ dinner where a random after-dinner conversation between a fellow DSBA council member, Paul Ryan,

the Dublin County Sheriff, Fergus Gallagher (a fellow West of Ireland man) and myself brought to light the fact that the Mayo Sheriff position had been advertised. Following on from that, I reviewed the job spec online and it struck me that my professional experience was highly relevant to the advertised role. From an experience perspective, I ticked all the boxes in terms of debt recovery, enforcement and regulation plus experience of working in the public service. Also, the encouragement I received from certain colleagues (you know who you are!) and others - not least my wife Eibhlin - to apply for the role reinforced my interest and my wish to pursue it. The role happened to dovetail with my desire to move west, so I sat down one evening and completed the application form online. You were appointed to the role by the Cabinet following an open recruitment process. What can you tell us about the process? The process was lengthy. The closing date for receipt of applications for the position was 2nd February this year and the date of my appointment was 5th July.

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Autumn 2017 dsba.ie In conversation with Julie Doyle. Julie Doyle is an associate solicitor at Beauchamps. She is a member of the Parchment committee

20 Minutes With...

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Photography: Michael McLaughlin

I have had plenty of experience in engaging in ‘difficult’ interactions during my professional career, so I see this as no different The Public Appointments Service (PAS) advertised the position in January of this year. As part of the application process, I completed and submitted a detailed application form setting out my relevant experience and qualifications. I was called to attend for interview in mid-March. At the end of March I received word from PAS that my name “among others” was being referred for consideration by Government for appointment to the position of Revenue Sheriff. I went through a garda vetting process which required my having to complete a garda e-vetting form. Also, I had to provide the names of three referees. On 5th July Minister Michael Ring, TD, contacted me to inform me of my appointment. Your new appointment is an important position recognising the debt collection function on behalf of the Revenue Commissioners, but also the enforcement of court orders for recovery of fines. How do you feel about taking on such a difficult role in your home county? I of course recognise that this role will no doubt be challenging, but I have significant career experience in statutory enforcement

and professional regulation over the past 12 years or so, in addition to working for a private equity company in the last two years. I have had plenty of experience in engaging in ‘difficult’ interactions during my professional career, so I see this as no different. In terms of taking on such a role in my home county, everyone can expect fairness, courtesy and professionalism from me in conducting my duties. In return, I expect the same. Equally however, if circumstances warrant a more rigid approach on my part, then so be it. The role of a Revenue Sheriff may be perceived as an unpopular one. Do you believe having lived away for an extended period of time that it will assist you in your enforcement role? Yes, undoubtedly. I think one of the features that made my candidature attractive from the perspective of the Revenue Commissioners is that whilst I’m from Mayo, I have not been living in Mayo since I left college, which may give rise to less instances for potential conflict of interest. What do you believe will be the greatest challenge of the role? On the whole, the role of Sheriff is extremely challenging which is what makes

it so interesting. Each case is dealt with in a particular context, and no two cases are alike. I imagine that the seizure of real property will present as challenging, not least from a logistical perspective. As part of your new appointment you will be setting up your own practice. What do you think are the advantages and disadvantages of setting up as a sole practitioner in the current market? Yes, in time I intend to establish my own practice, but as we speak my initial focus will be to develop the Sheriff ’s office and get that up and running. The advantages of setting up as a sole practitioner in the current market are that you become your own boss. Further, there is definitely a market out there, but the key is to find one’s niche within that market. The main disadvantage in private practice (leaving aside the considerable initial outlay and continuing overheads) as I see it, is the sheer length of time it takes to get paid from the date of opening the file to its completion. Maintaining one’s head above water while awaiting payment on completion of a matter is a very real issue to contend with. You have spent many years working as an in-house lawyer. How do you envisage the transition will be moving from in-house to private practice? I can only speak to my experience pertaining to the transition from in-house solicitor to Sheriff. The transition has been a real eyeopener. Moving from being a PAYE salaried employee to establishing and running my own office has been quite an experience: challenging, interesting, frustrating and rewarding in equal measure. The respective perspectives of in-house lawyer and Sheriffemployer could not be more different. How do you think your in-house experience will benefit your new role? I think having worked in-house in a large professional regulator, a small public service regulatory enforcer and a large private equity credit card company has given me a unique perspective on how the world works from a financial perspective. Indeed, the common theme throughout each of my previous roles is that of dealing in the financial services sector. Being Sheriff involves the collection of finances for Revenue, so my professional experience tallies neatly with my new role as Sheriff. Having spent more than 15 years living and working in Dublin, you remain a loyal Mayo man. Without discussing the harsh reality of being a Mayo supporter in Dublin these days, you are finally relocating back. Are you living the dream? Being able to come back to Mayo, where I hail from, is fantastic and something others can only dream of. I had hoped to come home for many years, and then this position arose. I have been truly fortunate to have been provided with this opportunity. Maigh Eo abu!

P

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26/09/2017 10:26


What now for Britain and Ireland? Terence O’Connor looks at the impact of the UK Government’s white paper on Brexit and what it may mean for Ireland

O

n 30th of March the new UK department, the Department for Exiting the European Union published the white paper on its proposals for ensuring the confident continuation of statute law on the leaving of the UK from the Union. The paper, to give it its full title is The United Kingdom’s exit from and new Partnership with the European Union. Firstly, the paper deals with something the majority of us thought we would never see happen. A nation withdrawing from the embrace of the European Union, in this case the pending repeal of the European Communities Act (UK) 1972 (ECA). The bill providing the vehicle for this is known simply as ‘the Great Repeal Bill’ or to give it its formal title Legislating for the United Kingdom’s Withdrawal from the European Union. It is proposed that the bill will convert EU law into UK law before the UK leaves. The main aim of the bill is in a word ‘confidence’. It is envisaged that businesses will know that they can operate and the rules have not been changed overnight, and to give confidence to individuals that procedural fairness, rights and obligations will not have been washed away with the change. How big is the job the legislative drafters have to do? EUR-Lex estimates that there are at present over 12,000 EU regulations in force. According to a paper, Legislating for Brexit: Statutory Instruments Implementing EU Law, House of Commons Library Research Paper 7867, published in January 2017, there are over 7,000 statutory instruments that have as their main purpose the implementing of EU legislation.

Most importantly from a legislative point of view, the bill envisages that the UK will be able to amend, improve or repeal any legislation once it is subject to UK law. The devolved legislatures of Wales, Scotland and Northern Ireland are to be allowed similar powers. Importantly, the bill will enable secondary legislation to be enacted that will correct legislation that would simply be rendered inoperative by the UK leaving the European family. This will also allow content of any article rendered null under the withdrawal agreement under Article 50.3 of the Lisbon Treaty: “The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the member state concerned, unanimously decides to extend this period”. As things stand at the time of writing, the ECA gives effect to the full weight of the EU in UK law under the various treaties. To put it simply, EU law is part of the domestic legal order and EU law has supremacy with the UK courts having to follow rulings of the Court of Justice of the European Union (CJEU). The same is true for Ireland and her fellow members and this will continue under the Doctrine of Supremacy as ruled in the famous 1964 case of Costa V ENEL. The quandary for the UK is thus; while some EU law applies directly without the vehicle of implementing legislation, others need to be implemented through the aforementioned implementing legislation. Further, domestic legislation other than the ECA lends effect to UK obligations under EU law.

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Autumn 2017 dsba.ie Terence O’Connor is a solicitor on the DSBA’s in-House Lawyers Committee

Repeal of the European Communities Act (UK) 1972 (referred to below as the ECA) provides clarity both in the UK and abroad as to what laws apply in the UK following the divorce and will become law the day the UK leaves the EU. EU regulations will cease to have effect under the repealing act and it is proposed to have these converted directly to UK law to avoid having large holes in the statute book on exit. However, rather confusingly if one has been following the debates prior to the referendum, Section 2(2) ECA provides the Government and devolved administrations with powers to make secondary legislation to implement EU obligations. This will survive in a somewhat bastardised form in that the bill, the subject of this white paper will preserve the laws the UK has made to implement its EU obligations. Therefore, the question may well be asked, what is going to be different, what is the substance behind the rhetoric? In an exercise of ‘let tomorrow be the same as today’ the Great Repeal Bill, (it is hoped by the drafters) will provide for the following: (i) Paragraph 2.4 states in essence the bill will convert directly applicable EU law into UK law. (ii) Paragraph 2.5 states all laws made in the UK to implement their EU obligations will be preserved. (iii) Paragraph 2.11 states that it is envisaged that all the rights conferred on the individual by the EU treaties can be relied upon directly in court by the individual and will be available under UK law. (iv) Paragraphs 2.12 to 2.17 state that historic Court of Justice of the European Union (CJEU) case law will

Brexit

be given the same binding and or precedent status as decisions of the UK Supreme Court. The bill is at pains to point out that EU regulations will not be “copied out” into the UK on a regulation-byregulation basis, rather the regulations will be converted into domestic law by the bill and continue to apply until the UK legislators decide otherwise. I am glad that’s clear then. What about legal precedent I hear you ask? The bill will provide that questions as to the meaning of EU-derived laws will be determined in the UK courts by reference to the CJEU case law as it exists on the day the UK leaves the Union. In short, the law is what the CJEU says it is until the day the UK leaves, after that all bets are off. How is this somewhat cynical approach to be justified? The bill as it stands, proposes that historic decisions of the CJEU are given the same status as decisions of the UK Supreme Court and its predecessor, the House of Lords. The guidance states that it is extremely rare for these august institutions to depart from their own decisions. However, there is a Practice Statement of 26th July 1966 and adopted by the Supreme Court in 2010 that in short states that while a former decision will be normally treated as binding, the court can depart from its previous decisions when it appears right to do so. See Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 – it is worth noting the judges who were involved in this Practice Direction, all the heavyweights of the bench were present: Lord Gardiner, Lord Reid, Lord Denning and Lord Wilberforce.

Most importantly from a legislative point of view, the bill envisages that the UK will be able to amend, improve or repeal any legislation once it is subject to UK law

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Annual trade between the Republic and the UK stands at £43bn

“Lord Gardiner, L.C.: Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.” (The italics are mine). This then is the vehicle that the legislature and the courts will use to adapt the laws to the UK situation. From Ireland’s point of view, the choices are somewhat stark. Are we to continue to be good if very minority Europeans now that the UK is leaving the stage? Or are we to embrace the economic realities of our geographical location and withdraw ourselves, will it be Boston or Berlin, or will it be Boston and London? The

trade figures speak for themselves. According to the British Government at the present time, annual trade between the Republic and the UK stands at £43bn, while 60% of Northern Ireland’s exports to the EU are to the Republic. The cross-border commute (Republic of Ireland to Northern Ireland and vice versa) is undertaken regularly by up to 14,000 people every year. The white paper itself states the desire of the UK government to maintain our special relationship, common travel areas and economic progress, at section 4.5 of policy paper The United Kingdom’s exit from and new Partnership with the European Union which states: “We will work closely to ensure that, as the UK leaves the EU, we find shared solutions to the economic challenges and maximise the economic opportunities for both the UK and Ireland”. This is comforting, but from a human rights and an economic perspective, Ireland’s diplomats will have an unenviable job keeping the country sitting comfortably on the fence where it has found itself. P

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14/03/2017 15:33 18/09/2017 16:09


McKenzie Friend or Foe? NEW PRACTICE DIRECTIONS FROM THE PRESIDENTS OF THE CIRCUIT COURT, HIGH COURT AND COURT OF APPEAL Keith Walsh looks at the background to the new practice directions and Section 58 of the Solicitors Acts 1954 which makes it a criminal offence to draw or prepare a document relating to any legal proceeding for reward

Background Mr Justice Peart in a judgement for the Court of Appeal (Ryan P Peart J, Hedigan J) delivered on 10th May 2017 of re: Butler & Butler [2017] IECA 149 held that the McKenzie Friend had in his view, ‘overstepped the mark’ in the way in which she sought to “assist” the litigant in person, a Mr Butler. Mr Justice Peart viewed the role of McKenzie Friend as a passive one and limited so as not to unreasonably interrupt the hearing and stated: It may well be time for some guidelines to be published so that persons who undertake the role of McKenzie Friend are fully aware of the nature of the role they are undertaking, its limitations, and the obligations to the litigant and to the court that they undertake. It is a role which has the capacity to assist the litigant and the administration of justice when properly exercised. However, it is important that its proper limits are understood and respected.

The Practice Directions On the last day of Trinity term the President of the Court of Appeal and the President of the High Court issued a joint practice direction on McKenzie Friends. A similar practice direction was issued by the President of the Circuit Court on 26th September 2017. Both practice directions are on the court’s website and came into effect on the first day of the Michaelmas sittings. Litigants may obtain reasonable assistance from a lay person, sometimes called a “McKenzie Friend”. The practice directions deal with the following: 1. Who are McKenzie Friends? The practice directions set out that litigants may obtain reasonable assistance from a lay person, sometimes called a “McKenzie Friend”. Litigants assisted by McKenzie Friends remain litigants in person. McKenzie Friends have no independent right

to provide assistance. They have no right of audience, to act as advocates or to carry out the conduct of litigation. They have no entitlement to payment for their services. 2. Defining the extent of what McKenzie Friends may do in court when assisting a lay litigant. (a) they are permitted to: (i) provide moral support for litigants; (ii) take notes; (iii) help with case papers, subject to paragraph 6 below; (iv) quietly give advice on any aspect of the conduct of the case. (b) they are not entitled to: (i) address the court, make oral submissions or examine witnesses or otherwise conduct litigation. In exceptional circumstances a court may permit a McKenzie Friend to address the court. Such circumstances will be rare; (ii) receive any payment for their services; (iii) act as the litigants’ agent in relation to the proceedings; (iv) manage litigants’ cases outside court, for example, by signing court documents. (c) Emphasising the jurisdiction of the courts to decide the limit of the McKenzie Friend’s involvement: ‘Whilst litigants may receive reasonable assistance from McKenzie Friends, the court retains the power to refuse to permit such assistance. The court may do so where it is satisfied that the interests of justice and fairness do not require the litigant to receive such assistance. Where the court permits a litigant to receive assistance from a McKenzie Friend, it may regulate the manner in which assistance is provided. It may withdraw the permission if of opinion that the administration of justice is being impeded by the McKenzie Friend. If requested by the court a

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?

Autumn 2017 dsba.ie Keith Walsh is principal of Keith Walsh Solicitors, Crumlin. He is a former editor of the Parchment and former President of the DSBA

Litigation

McKenzie Friend must provide his or her name, address and contact details.’ (d)The practice directions state that only one McKenzie Friend may assist a litigant in court. 3. Both practice directions draw McKenzie Friend and lay litigants attention to Section 58 of the Solicitors Act 1954 as amended, which makes it a criminal offence for an unqualified person, as defined in that Act, to draw or prepare a document relating, inter alia, to any legal proceeding either directly or indirectly for or in expectation of any fee, gain or reward. Although not reproduced in the practice directions, Section 58 of the Solicitors Act 1954 as amended by Section 77(a) of the Solicitors (Amendment) Act, 1994 and as amended by Section 22(2)(b)of the Solicitors (Amendment) Act, 2002 is set out below. Section 58 of the Solicitors Act 1954 as amended 58.(1) This section applies to the following acts: (a) the drawing or preparing of a document relating to real or personal estate or any legal proceeding, (b)the procuring or attempting to procure the execution by an Irish citizen of a document relating to: (i) real or personal estate, or movable or immovable property, situated or being outside the State and the United Kingdom, or (ii) any legal proceeding, actual or in contemplation, of which the subject matter is any such estate or property, (c) the making of an application, or the lodging of a document for registration, under the Registration of Title Act, 1891, or any Act amending that Act, at the Land Registry or with a local registering authority, (d) the taking of instructions for, or drawing or preparing of, documents on which to found or oppose a grant of probate or letters of administration. (2) An unqualified person who does any act to which this section applies shall, subject to subsection (3) of this section and without prejudice to any other liability or disability to which he may be subject, be guilty of an offence under this section and be liable: (a) on summary conviction thereof to a fine not exceeding €3,000 (b) on conviction thereof on indictment, to a fine not exceeding €30,000 (3) The following acts shall be excepted from the foregoing provisions of this section: (a) an act not done either directly or indirectly for or in expectation of any fee, gain or reward, (b) an act done by a practising barrister, (c) an act done by any public officer in the course of his duty, (d) an act done by a duly accredited diplomatic or consular officer of another state in the course of his duty, (e) an act done by a notary public as such, (f) an act consisting merely of engrossing a document, (g) an act done by a person in the employment of a practising barrister or a solicitor qualified to practise and while acting in the course of such employment by the direction and under the supervision of his employer. (4) In this section, the word “document” includes a

document under seal and a document not under seal, but does not include: (a) a letter or power of attorney exclusively for the sale or transfer of stocks, shares, bonds, debentures or other stock exchange securities, (b) a transfer of stocks, shares, bonds, debentures or other stock exchange securities containing no trust or limitation thereof, (c) a purely banking document, or (d) a purely commercial or mercantile document.

Likely effect? The practice directions have provided welcome clarification of the role of McKenzie Friends for judges, lay litigants, McKenzie Friends, lawyers and all involved in the system of justice. This clarity is of huge benefit and its effects will become evident in the coming months. The practice directions have brought welcome publicity to the important sub sections contained in Section 58 of the Solicitors Act 1954. Section 58 is primarily aimed at those holding themselves out as McKenzie Friends but includes those who are actually providing a service for reward. The practice direction makes it clear that this will no longer be tolerated by the courts. Following the publication of the High Court and Court of Appeal practice direction one well known DIY divorce practitioner indicated that he would be reducing the services on offer as he wished to operate within the law. It will be interesting to observe whether other paid McKenzie Friends will continue to operate in breach of Section 58 and if so, what sanctions will be imposed when they come before the courts. P the Parchment 15

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May You Live in Interesting Times Why we Needed a New Code of Practice on Family Law in Ireland Keith Walsh is a former chairperson of the DSBA Family and Child Law Committee and is currently chair of the Law Society of Ireland Family and Child Law Committee. He looks at how the world of family law in Ireland has changed since the last Code of Practice in 2008 and looks forward to improvements in family law practice

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he new Code of Practice on Family Law produced by the Family and Child Law Committee of the Law Society was launched on 14th September 2017 by the President of the District Court Judge Rosemary Horgan. The last code was introduced in September 2008 and while no one needs any reminders of how the world has changed since then, the old Chinese curse ‘may you live in interesting times’ comes to mind.

Changes to Family Law since 2008 The world of family law, while facing significant challenges from a resource point of view, has changed for the better since 2008. The following progressive legislation and referendums have changed the landscape of family law: • The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 • The passing of the marriage equality referendum • The referendum on the voice of the child • The Child and Family Relationships Act 2015 The judiciary, the Courts Service and practitioners have made efforts to put in place more efficient court procedures to assist resolution of family law cases in a more efficient manner: • High Court Practice Direction 51 was introduced in July 2009 with the aim of ensuring that family law proceedings were dealt with in a manner that was just, efficient and cost effective and that parties were given an opportunity to enter into productive discussions at the earliest opportunity. • The updating of practice and procedure in the Circuit Family Court with the introduction of a new Order 59

in June 2017 (S.I. 207 of 2017) which consolidated the previous order and introduced new practice and procedures to minimise delays in the Circuit Family Court. A new system of Case Progression for the Dublin Circuit was introduced as part of the new Order 59. • Many family lawyers and judges have trained as mediators and collaborative lawyers and a number of collaborative law practice groups are going strong. The influence of collaborative law, mediation and other alternative dispute resolution mechanisms now permeates the family law system and there has also been a growth since 2008 in the number of solicitors and barristers specialising in the area of family law. Dr Carol Coulter of NUIG and the Child Care Law Reporting Project Fiona Gartland of the Irish Times and some local reporters have opened up the family courts by using the changes to the in camera rule to report on family law cases while preserving the anonymity of those involved. The caselaw from the Superior Courts (including the new Court of Appeal) in the past 10 years has further refined family law practice. Another feature of family law is the increasingly complicated child care cases coming before the District Family Court and the length of time required to deal with them. There are also regional variations in how various family law cases are dealt with by the courts.

Current issues in Family Law in Dublin – the Context for the New Code of Conduct We still face significant resource challenges in the family law area. The Legal Aid Board’s private practitioner scheme providing legal aid through private

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Autumn 2017 dsba.ie Keith Walsh is a former chairperson of the DSBA Child and Family Law Committee and is currently chair of the Law Society of Ireland Family and Child Law Committee

solicitors remains under resourced and under-utilised. The Legal Aid Board itself, which is a very significant part of the family law system of justice, remains underfunded and waiting lists in law centres are still unacceptably high with figures for August 2017 revealing that the waiting time for a first consultation in Tallaght Law Centre is 32 weeks or just under 8 months. This is no reflection on the expertise or dedication of the staff of the Legal Aid Board at all levels who continue to provide an excellent service on inadequate budgets. There was a suggestion from government in 2013 and 2014 that a specialised system of family courts would be set up but this initiative appears to have been parked. Former Minister for Justice, Equality and Defence, Alan Shatter mentions in his recent memoir that he did not get around to setting up the specialised system of family courts and we may wait for some time for another minister to do so. Those with longer memories will recall that the Law Reform Commission in 1996 and the Denham Commission in 1998 also suggested a consolidation of certain courts and a specialist system of family law justice. Worryingly for Dublin practitioners, the Hammond Lane site which was due to house the new Supreme Court and the child care courts, the childrens court and the District, Circuit and High Court for family law remains untouched and there is no clear indication of when this project will move forward. The current premises for all family law courts in Dublin are only suitable for continued use on a temporary basis and the lack of a viable medium term solution is of great concern. The Child and Family Relationships Act 2015 is not fully commenced. The Mediation Bill has at last been passed in recent weeks but it is a very short piece of legislation and will require a framework to be put in place for the training and regulation of mediators ideally on a statutory basis. Reform of the guardian ad litem system is awaited. Currently practitioners are struggling in practice with how the voice of the child should be heard, particularly in cases where resources do not permit the retention of an expert witness. The length of time to deal with matters involving children before the courts has increased following the welcome necessity to hear the voice of the child and regard the child’s welfare as paramount. Needless to say all the above concerns are outlined by the DSBA, the Law Society and the Family Lawyers Association to government on a regular basis and submissions made, what we require is action.

New Code of Practice for Family Law It is in this context that the Family and Child Law Committee of the Law Society updated their Code of Conduct. The objective of the new Code is the same as previous codes – ‘to assist practitioners in providing an excellent service to clients who by virtue of the fact that they have instructed a solicitor, either are contemplating ,or in the middle of family law proceedings, and are having a most stressful life experience. The guidelines are designed to enhance the service provided to the client and to assist professionals in maintaining professionalism in this most difficult task.’ The guide can be downloaded on the Law Society website members section under resources.

Family Law

L to r: Rosemary Horgan, President of the District Court; Law Society Director General, Ken Murphy and Keith Walsh Photo: Jason Clarke Photography

The new Code of Practice for Family Law in Ireland The Law Society recommends that all solicitors practising family law follow this code as a point of reference but it is ‘not a straitjacket’. Its guidelines cannot be absolute rules and it may be necessary to depart from it if professional rules or duties require it. Briefly, the code sets out best practice for family law in the following areas: • Alternative Dispute Resolution • Relationship with the client • Dealing with other solicitors • Relationship with counsel • Dealing with lay litigants • Court proceedings • Children • Children in private family law disputes • Children in childcare cases • The child as a client • Survival plan for parents/Parenting plans • Expert witnesses • Conflict of interest • File management • Anti-money laundering obligations The code is available to download on www.lawsociety.ie. Thank you to the Child and Family Law Committee and all in the Law Society responsible for producing this updated edition. P

Waiting lists in law centres are still unacceptably high with figures for August 2017 revealing that the waiting time for a first consultation in Tallaght Law Centre is 32 weeks or just under 8 months

The Law Society of Ireland Annual Child And Family Law conference takes place on 24th November 2017. The Code of Practice on Family Law In Ireland available to download on the Law Society website. the Parchment 17

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Loan Book Sale Issues Grainne Fahey, BL, warns parties in litigation involving assigned debts and securities to check the fine print

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laintiffs seeking to enforce security or recover debts from a position of having bought a loan and/or mortgage book must prove two things: (i) An entitlement to stand in the shoes of the lender; (ii) That the debt is due and owing and (if suing on foot of security), secured. In order to overcome the first hurdle a valid assignment of the loans and relevant securities must have taken place. Generally the sale of a loan book is done by way of (i) a contract for sale listing the loans and securities to be sold in a schedule followed by (ii) a deed of transfer in respect of charges associated with mortgages over registered lands and all of the rights and obligations of the lender under the loan agreements, and (iii) a deed of conveyance and assignment in respect of mortgages over unregistered land. Therefore in checking that a valid assignment has taken place, advisors should ensure that the deeds have been properly drawn up and executed and the loan facility and/ or security sued upon has been validly transferred. This will involve carrying out the following checks: 1. Where suing for recovery of a loan which is the subject of a chain of refinance agreements, depending on the wording of the refinance facilities, it can create difficulties in seeking to recover that loan if one of the agreements has not been transferred. Parties should therefore check whether a necessary link in the chain of facilities has been overlooked in the transfer process; 2. Where the plaintiff sues as mortgagee over a number of sites which were separately financed and then redeveloped as one site, parties should check that no necessary folios or title deeds have been overlooked in the transfer process (see Denis English -v- Promontoria (Aran) Limited 2016 IEHC 662). 3. That there is no contractual prohibition on the

assignment - i.e. the loan facilities or security documents entered into with the borrower do not prohibit an assignment or require the borrower’s consent. 4. That section 28 (6) of the Supreme Court of Judicature (Ireland) Act 1877, which provides how a borrower should be notified of an assignment, has been complied with. There must be an assignment, it must be absolute, it must be in writing under the hand of the assignor and express notice must be given to the borrower by the assignor. A general waiver or consent contained in a lender’s general terms and conditions does not of itself operate to obviate the need for proof of notice (AIB Mortgage Bank v Thompson [2017] IEHC 515). There are no particular requirements as to service of the notice nor of manner in which the notice is given except that it must be in writing. The lack of a date on the document giving notice is not material so long as it is given after the actual assignment (LSREF III Stone Investments Limited and John Morrissey [2015] IEHC 603). 5. That the loan facilities which were transferred do not expressly prohibit or require the borrower’s prior consent to an assignment of the lender’s rights. 6. In the case of loans which have been refinanced or rolled over, it may be necessary to rely on a previous facility letter. Advisors should check whether a necessary link in a chain of facility letters has been overlooked in the transfer process. 7. Where the plaintiff sues as mortgagee over a number of sites which were separately financed and then redeveloped as one site, advisors should check that no necessary folios or title deeds have been overlooked in the transfer process. 8. Where the security is a mortgage over unregistered

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Autumn 2017 dsba.ie Grainne Fahey, BL, is a practising barrister with an interest in banking and securities litigation

land, advisors should bear in mind that registration of a mortgage transfer is not an assurance of good title (Denis English v Promontoria (Aran) Limited [2016] IEHC 662). There are ways around an invalid assignment such as reliance by the purchaser of the debt on an equitable assignment (AIB Mortgage Bank v Thompson) or the assignor suing as trustee but the availability of such options will depend on the facts of the case. Assuming that the plaintiff proves an entitlement to stand in the bank’s shoes, how can the plaintiff prove that the debt is due and that the plaintiff is entitled to the secured asset? In the first instance, a plaintiff who is not licensed by the Central Bank cannot rely on the Bankers Book Evidence Act 1879 and may struggle to find a witness with sufficient familiarity with the relevant account to swear a grounding affidavit. Secondly, in the event that a substantial dispute on matters which occurred prior to the sale of the loan, is there any reality to the bank’s employees (or former employees) coming to court to give evidence to the benefit of the plaintiff? Would the new owner of the loan know the identity of the appropriate witness on whom a witness summons could be served? One final issue frequently arising in these kinds of cases flows from a reluctance on the part of the owner of the debt to disclose the full suite of transfer documents and to heavily redact such documents which are disclosed. In Denis English v Promontoria (Aran) Limited [2016] IEHC 662 the High Court granted an interlocutory stay on the appointment of a receiver which had been granted. The court held that the defendant had not clearly established a chain of title over the plaintiff’s mortgage such as to entitle it to invoke the provisions of the mortgage for the

Litigation

purpose of appointing a receiver. At the interlocutory stage the defendant had refused to produce certain deeds relevant to the transfer and had heavily redacted other deeds. Murphy J’s decision contains the following guidance on redaction: the borrower was neither entitled to know the consideration that had passed in respect of the sale of the debts and securities nor details of other properties included in the sale. He was however, entitled to know (i) who had signed on behalf of the bank and (ii) that at the material time that person was a duly authorised signatory on behalf of the bank and (iii) that the contract was properly witnessed. Subsequently the defendant produced additional documents and the stay was lifted. Murphy J stated: “the evidence furnished permits the plaintiff, should he choose, to challenge the validity of the deeds. He could do so by the simple means of checking in the Companies Registration Office that these deeds which are valid on their face have in fact, been executed in accordance with the constitution and rules of each corporate entity involved. He has either not done so or having done so, has found no irregularity with which to challenge the validity of the various deeds. The plaintiff ’s failure to challenge deeds which are valid on their face amounts in the court’s view, to an acceptance of their validity if only by inference”. (English -v- Promontoria (Aran) Ltd (No.2) [2017] IEHC 322) Lessons to be gleaned from the foregoing therefore are: (i) assignees should ensure that at an early stage of the litigation an appropriate balance is struck between withholding sensitive information and disclosing sufficient material so as to prove a prima facie transfer. This will shift the onus on the borrower then to challenge the validity of the transfer (ii) borrowers who raise prima facie defence or dispute on facts which predate the assignment may find themselves in a better position than those whose loans have not been sold. P

Usually the transfer documents relied upon in these actions are redacted extensively before being disclosed to the defendants in these kinds of actions

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Peter Murphy is a partner at O’Mara Geraghty McCourt. He is a committee member of the new DSBA Employment Law Committee

Data Protection

Data Processing Guidelines for Workplace The forthcoming commencement of the general data protection regulation and the High Court’s recent referral of the Schrems case to the CJEU highlight the ongoing importance of data protection issues. Peter Murphy looks at a recent opinion of WP29

W

hat is WP29?

Employers should also be aware that because of the imbalance in the relationship, employees’ consent to the monitoring of their devices is almost never free and cannot be relied on

The Article 29 Working Party (WP29) is an independent, European advisory body on data protection and privacy established by the 1995 directive. Its role is to provide guidance on directives. It looks to harmonise the application of data protection rules throughout the Union.

What has the WP29 done? On 8th June the WP29 issued Opinion 2/2017 on data processing at work. This article will look briefly at Opinion 2/2017 and its conclusions.

What does Opinion 2/2017 say? Opinion 2/2017 looks to complement Opinion 8/2001 - the seminal Opinion of WP29. Obviously technology has progressed rapidly since, which has impacted massively on the workplace. This Opinion, mindful of GDPR, looks to assess the legitimate interests of employers and the reasonable privacy expectations of employees in respect of new technologies. In summary the Opinion states: • Employers should always bear in mind the fundamental data protection principles, irrespective of the technology used; • The contents of electronic communications made from business premises enjoy the same fundamental rights and protections as analogue communications; • Consent is highly unlikely to be a legal basis for data processing at work, unless employees can refuse without adverse consequences;

• Performance of a contract and legitimate interests can sometimes be invoked, provided the processing is strictly necessary for a legitimate purpose and complies with the principles of proportionality and subsidiarity; • Employees should receive effective information about the monitoring that takes place; • Any international transfer of employee data should take place only where an adequate level of protection is provided.

Conclusions The Opinion sets out a number of points for employers to be mindful of. The fact that an employer owns an electronic device does not rule out the right of employees to secrecy of their communications and related locations. Employers should also be aware that because of the imbalance in the relationship, employees’ consent to the monitoring of their devices is almost never free and cannot be relied on. While legitimate interest can be relied on, it must be shown that it is proportionate. Measures of employers should be transparent and policies and rules concerning same must be clear and readily accessible. It is also noted that the use of “the cloud” will result in the international transfer of employee data. This should only take place where an adequate level of protection is ensured and the data shared outside of the EU/EEA is limited to the minimum necessary for the intended purposes. While there are still uncertainties around data processing and the GDPR, what is sure is that it is an important and expanding area and one which all employment lawyers must be aware of. P

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09/10/2017 16:40


Minefield of Traps Richard Grogan warns colleagues about some pitfalls when bringing or defending cases under the National Minimum Wage Act 2000 at the Workplace Relations Commission (WRC)

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his problem goes to the jurisdiction of an Adjudication Officer to hear a case. It deals with what the Director General of the WRC must do before a case is sent to the Adjudication Officer and the issue of costs. There are issues which are arising in National Minimum Wage claims where colleagues are getting caught. This article is intended to avoid that situation arising. The first issue is that claims under the National Minimum Wage Act currently can go back for a period of six years. This is an exception to the normal WRC procedures and something some colleagues miss when acting for employers and employees. Before a claim can be made under the National Minimum Wage Act it is important that a request is made under Section 23 of the Act for a statement for any pay reference period falling within 12 months preceding the request [Section 23 (1)]. A problem arises in relation to what is a pay reference period. If a pay reference period is not specified in the contract or in the staff handbook given to the employee, colleagues bringing claims need to be careful. Even when a pay reference period is specified it would be our view that you would cover matters on the following basis: namely that you would request a pay reference period for a week, two weeks, three weeks, four weeks and a calendar month. Effectively this covers all the bases. In this year for example, for the month of January it would be from 1 January 2017 to 7 January 2017, 1 January 2017 to 14 January 2017, 1 January 2017 to 21 January 2017, 1 January 2017 to 28 January 2017 and 1 January 2017 to 31 January 2017. Under Section 10 of the Act an employer may select the pay reference period. However that may not exceed one month.

By covering every possible combination in bringing a claim you must have covered a pay reference period. For those who are observant they will note that the 1 January 2017 was a Sunday. You may ask why that date was specifically picked. The answer is simple. A week is not defined in the National Minimum Wage Act 2000 as amended. Therefore you must go to the Interpretation Act. The Interpretation Act defines a week as commencing at midnight on Saturday (which is effectively the Sunday) and ending at midnight on the following Saturday. If a Section 23 notice in accordance with the Act has not been furnished, the Adjudication Officer has no jurisdiction to hear the case. This is important for both those representing employers and employees. Where a statement is served the claim should not be sent to the WRC for a period of one month thereafter. It is always advisable to leave an extra couple of days. Do not worry about the normal statutory periods. Let us say an employee was dismissed on 31 December 2016. They come to you on the 1 July 2017. You can pick any pay reference period effectively back to August 2016 to put a request in to cover. Let us say you do that in early August. You then have to wait one month but you effectively have a further five months effectively in which to lodge the claim. Therefore an employee who leaves employment on 31 December 2016 means you have up until 30 December 2017 to serve a request under Section 23 and have a further six months in which to lodge the claim. When lodging the claim you should also send a letter to the Director General requesting under Section 26 (1) (a) that she checks the notice under Section 23 and the evidence of service of the said notice, before referring same to an Adjudication Officer. Section 26 was inserted by Section 52 of the Workplace Relations Act 2015 and

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Autumn 2017 dsba.ie Richard Grogan is principal of Richard Grogan & Associates Solicitors & Registered Tax Consultants

places a specific obligation on the Director General to check that a valid request under Section 23 has been served. Of course the WRC does not check anything. This statutory provision is simply being ignored by them. Therefore to cover yourself you can put the liability on to them as you are perfectly entitled to do, if they do not check. You may lodge a claim within the one-month period after service of a request under Section 23 if you receive a response from the employer setting out the average hourly rate of pay. Otherwise you must wait one month. If you do get the certificate you should include that with the documentation you send to the Director General for her to check. When you run a case before an Adjudication Officer you should ask the Adjudication Officer to confirm that Section 26 has been complied with. You are also entitled if acting for an employee, to request reasonable expenses in connection with the dispute. In MWD8/2013 a sum of €150 was awarded. I am of the view that the employee is entitled to claim their travel costs, the out of pocket expenses in attending at any hearing and any lost pay for the day in attending. The issue is going to arise as to whether they are entitled to their legal fees involved in putting together a request under Section 23. The reason for this is that there is no guide from the WRC which does not have a huge legal disclaimer on it and therefore it is arguable. Employees bringing a claim should get legal advice and should be reimbursed for the cost of full compliance with Section 23, particularly as the legislation is less than specific, particularly in determining what is the pay reference period for putting in a Section 23 notice. One issue which is constantly coming up is the calculation of pay. I would refer colleagues to the Schedule to the Act of 2000. Part 1 sets out

Employment Law

reckonable components. Part 2 sets out non-reckonable components. For example, overtime premiums, callout premiums, service pay and Sunday premiums are examples of non-reckonable components. Any form of non-taxable expense is not included. I would advise colleagues not to look at the right hand side of a payslip but to look at the left hand side. The employee might receive €400 net a week for a 40-hour week. However, if their wage was €250 and they received €150 as expenses or any of the non-reckonable components, the rate of pay is not €10 an hour but in fact just €6.25 per hour. If they were employed just for 2016 the loss is €2.90 per hour being €116 per week being €6,032 for the full year. They would also have effectively been underpaid public holidays and their annual leave payments which are cases where additional compensation could also be obtained. I would advise colleagues that there is an epidemic problem of some employers trying to categorise part of wages as “expenses”. This is usually for the employer to save the employer’s social security contributions. It can also be due to bad tax advice and in addition, it can be down to pure stupidity in assuming that a nonreckonable component of pay is included in the National Minimum Wage. Unfortunately, a significant percentage of National Minimum Wage claims are lost because employees or their representatives do not issue the claim correctly. This is the reason I advise colleagues issuing claims to put the obligations squarely on the Director and if there is any loss occasioned then you can sue the WRC/the Department of Business, Enterprise and Innovation. The National Minimum Wage Act 2000, as amended, is a minefield of traps for the unwary. This article is intended to assist colleagues avoiding those traps. P

Of course the WRC does not check anything. This statutory provision is simply being ignored by them. Therefore to cover yourself you can put the liability on to them as you are perfectly entitled to do, if they do not check

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News

Law Society elections

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ctober is election time for the Law Society Council and the Parchment is supporting all Dublin candidates based who include:

• Justine Carty (Gartlan Furey); • Brian Connolly (Accenture); • Brian Cunneen (O’Malley Cunneen McCarthy); • Paul Egan (Mason Hayes and Curran); • Stuart Gilhooly (H.J. Ward & Co.);

Keith Walsh

• • • • • • • • •

Paul Keane (Reddy Charlton); Eamonn Keenan (Sexton Keenan); Liam Kennedy (A&L Goodbody); Sonia McEntee (McEntee Solicitors); Valerie Peart (Pearts); Claire Ryan (O’Connor Solicitors); Gregory Ryan (Greg Ryan Solicitors); Catherine Tarrant (State Claims Agency); Keith Walsh (Keith Walsh Solicitors).

As this is the Parchment, we cannot let the occasion pass without a plug for two former

DSBA Presidents and indeed two former Parchment Editors – Stuart Gilhooly and Keith Walsh. Also, DSBA council member and current treasurer – Greg Ryan is also seeking election. 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. Polls close on 27th October. The Law Society AGM takes place on 2nd November 2017.

Stuart Gilhooly

Greg Ryan

Parchment DSBA.IE

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13/10/2017 18:21


The Helmsman From Belmullet to the Inner Bar, Paul McGarry’s rise to the top of his profession did not happen overnight. The Mayo man now heads the Bar of Ireland and, as its chairman, he is in charge of representing over 2,200 barristers during his two year tenure. Fellow Mayo man and Parchment editor John Geary caught up with the busy Senior Counsel

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meet Paul McGarry at his office in the Distillery Building. Brief upon brief stretch across his boardroom table, as he clears the way for our discussion. There are also multiple boxes of briefs that appear to have just arrived for his attention. Despite being surrounded by this chaos of paperwork, he is calm, welcoming and keen to talk to the Parchment. After a ‘five-year package holiday’ in Boarding School at Roscrea, Co. Tipperary, the young McGarry had picked up an early interest in the law. Despite there being no lawyer in his family or any legal background, he set himself out on the road to law. “When I was in school I was interested in current affairs generally and history, English and Latin. I picked law because around the

I picked law because around the time I was in secondary school there was a lot of discussion about high profile cases in the UK like the Birmingham Six and Guilford Four

time I was in secondary school there was a lot of discussion about high profile cases in the UK like the Birmingham Six and Guilford Four. These type of cases were in the news an awful lot around that time and there were a lot of books published about them so it was a topic that I was interested in.” He went to UCD, read law and secured his BCL. Not content with just an honours degree, Paul went on to study for an LLM in UCD in European Law. His next step was an interesting one. “I went and worked in Brussels for four years with the European Commission as an official. It was absorbing, despite the civil service bureaucracy. I worked in a policy/administrative role and it was very engaging. I was involved in environment and consumer law as well as competition law.”

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Autumn 2017 dsba.ie John Geary is Principal of J.V. Geary Solicitors, Castlebar and Dublin. He is editor of the Parchment

Cross Examination

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We tried to change the ethos of the organisation from being one which is reacting to issues from time to time to being one that provides services directly to the members in a more modern and efficient way But the lure of the ‘auld sod’ was always there and after his four-year stint in Brussels, Paul was intent on coming home. I was curious to know what tipped him in favour of the barrister route. He admits to having been a debater in school and university and liked making his point in an argument. “I saw myself as an advocate. Also, I knew people who were at the Bar and I was encouraged by their feedback. I had a preference for being self-employed.” He describes attending the Kings Inns on a two-year course, part time and he came under the tutelage of barrister Paddy Hunt. “Paddy was a very well known tax barrister. I landed on my feet with Paddy who was a really fantastic master. He is sadly deceased now.” Paul then explains that because of his experience of working in Brussels, he ended up getting asked to do quite a lot of work in the area of European Law and Competition Law. “Twenty years ago there were less people practising in that area of law in Ireland and so it quite a niche area. I ended up doing numerous cases over the years in the Courts of Justice in Luxemburg.” The Mayo man has a good command of French and has conversational Spanish, which was a help when in Europe. He tells of his involvement in the Council of European Bars and that he was head of the Irish delegation two years ago. Nowadays, McGarry has built a diverse practice – still concentrating on European and Commercial Law – but also Chancery and Judicial Review. He confesses to not having any great interest in crime. “I did one murder trial once which was I found horrible, quite scary.” I ask him to comment on the new CCJ; the complete and utter divide with the Four Courts; and the difficulties for barristers who had a mixed practice of civil and criminal. Effectively, barristers have to practice either one or the other given the location of the two court buildings. “It is one of the big regrets I think at the Bar that we have the CCJ built where it is. In essence there has been a division now between those who practice and it was possible for people to do both, practice in criminal law and civil law

and interchange which was a good thing but now the reality is, you must do one or the other. We lost something as a result of that. I think the Four Courts has lost something too. I mean even if you walk in to the Law Library, or even the Courts area themselves and the Round Hall - there is nowhere near the same level of activity as there would have been before the CCJ opened up and it’s a bit of a shame because at the Bar, we rely on the colleague structure.”

Bar Council We discuss Paul’s early involvement with the Bar Council and he tells me that he was on Council for a few years as a junior counsel and chaired a number of committees such as the Junior Library Committee (now known as the Policy and Public Affairs Committee). “The late Rory Brady asked me to get involved when I was quite junior. There wasn’t a lot of junior representation at the time and Rory got me on board.” Paul took silk in 2010 and recounts what a special day that was for him and his family. I ask Paul why did they change the name from the Bar Council to the Bar of Ireland? He says that the names are still used interchangeably. “We hired a new Director/ CEO in the last couple of years and we’ve put in place a new team of people who are very modern and dynamic. We tried to change the ethos of the organisation from being one which is reacting to issues from time to time to being one that provides services directly to the members in a more modern and efficient way. We did some research and surveys into how best to market the profession and we decided we would change the name. It’s not a big thing.” We discuss the process of becoming Chair of the Bar of Ireland and I enquire is it based on seniority? “No we have a very competitive electoral college system whereby the Bar elects, members of the Council as the chair. There are 20 votes every year and there hasn’t always been an election but there has been elections many years and some of them can be fairly close. I was vice-chair for the year immediately before I became chairman but again it’s not an automatic progression

like you have in other organisations where you can tell a number of years out who is going to be in the chair.” It is noteworthy that McGarry saw off Sarah Moorhead SC and Seamus Woulfe SC, now the Attorney General, in his bid to get elected as chair. He now represents the 2,200 members of the Bar which include 300 senior counsel and some 1,900 junior counsel. How does a busy senior, who is married to Olga (they have two sons aged eight and ten), find time to run a busy practice and also be chairman of the Bar? “There are a lot of events that you are required to go to and there are numerous weekly meetings. Obviously you need to be careful that you don’t completely throw your practice away. I’d say in my case maybe 40% of my week is spent with Bar Council business but there are some weeks when it is a lot more than that.” The gig is for two years and McGarry is just past the halfway point. He says the twoyear chairmanship is a good idea as it takes a few months to get up to speed on all the issues. “There is an awful lot going on at the moment between Legal Services Regulation, judicial appointments, you know ongoing issues that we have with the various state bodies who retain the services of barristers, relations with the Law Society which are very very good. We have a huge amount of work to do in a wide variety of other areas like Brexit and the international sphere and all the time trying to meet the demands of members. “One of the things we tried to do this year was to improve the interaction between Council and by that I mean the administration of the organisation and members on circuit for example. They’ve been a little bit left behind by the changes that we have introduced in Dublin and we are also trying to obviously improve facilities for members all the time. We have a huge amount of work done on IT for members in the run up to General Data Protection Regulation (GDPR) in 2018 so we have invested a considerable amount of money in providing facilities for members. We want to ensure that our members are data protection compliant.” In addition to that, the chairman has got out to meet members around the country with a recent visit to Cork, and Galway and Kilkenny earlier this year. He stresses the importance of ‘pressing the flesh’ and listening to barrister members across the country and what is happening on the ground.

Legal Aid The slashing of legal aid fees during the recession was a difficult pill for practitioners to swallow. Now that the economy is

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Autumn 2017 dsba.ie

Cross Examination

Photography: Bryan Meade

somewhat back to itself, is the Bar of Ireland doing anything to address this issue so that colleagues are properly paid for their work? “We have been talking to the various government departments and the people who are involved – the Legal Aid Board and the Attorney General’s Office but more importantly Department of Public Enterprise and Department of Justice about this. I suppose one of the problems with that is that you rely, I think initially, on the DPP to drive it because of the parity rule in relation to fees on legal aid on the criminal side. If the DPP is minded to increase the fees that are available for solicitors or counsel mainly as they instruct Counsel you will then see the Legal Aid Board on the other side will do it. And we are talking to them about that because some of the cuts have been 30/40% so it’s on the agenda. They have recently introduced a new range of fees which weren’t there before for the Court of Appeal Criminal side which is good and we are now hopefully getting to a stage with the Department of Public Enterprise and Reform where they are going to restore. There was an 8% and a 10% cut which we thought was way over the top on the back of 10/20% cuts that had already been imposed. We are hoping that we can get those back some time in the next six months to a year.”

Burning Issue I am curious to know if there is one burning issue for barristers at this time and I ask the helmsman what that might be. “I’m not sure there is one burning issue because there are lots, depending on the barrister. They all have different concerns. I think one of the big concerns I have is that junior members are finding it much harder now to get going so we are losing more people now than we would have 20 years ago and it is partly due to the state of the economy as a whole. We have lost a considerable number of barristers. I don’t have the exact figures, but we were up around 2,500 at one point. We are now down under 2,200.” He acknowledges that some junior barristers have left to convert over to being solicitors; others have gone to work ‘in house’ with companies or with large Dublin solicitor firms. But sadly others have left the Bar because they were simply unable to make ends meet.” If you think about it, barristers get instructed at the start of a case. I say this to students all the time. If you get instructed at the beginning of a certain case you might not get paid until well after the case is finished and litigation in Ireland is slow. Civil litigation can take 3 or 4 years and it’s not unusual if you add another six months or a year after that to get paid. It’s not hard to

see how it would take 5 or 6 years for you to get paid in that scenario.”

The Future The topic of the Legal Services Regulatory Authority (LSRA) inevitably comes up and Paul tells me that his predecessor, David Barniville is the Bar’s nominated member on the Board of the LSRA. I ask him does he see solicitors and barristers coming together, as envisaged in the legislation, as being a good idea or will the traditional approach prevail? “I think the market in this country suits the current approach. We have done a lot of work to date. The Legal Services Regulatory Authority had to conduct a number of consultations from the 1st of October last year in relation to things like legal partnerships and multi-disciplinary practices. Both ourselves and the Law Society made submissions and we have seen some of the reports and the interim reports coming out of the Legal Services Regulatory Authority and it looks as though they have accepted the arguments. In fairness, the Law Society have been saying similar things to us. In a society and a market as small as this, to create new regulatory structures without first assessing whether there is any real demand for the types of business models they are talking about is a silly idea. It’s daft to spend a whole load of money creating a structure to regulate something and spending a lot of money on all of that when there is no evidence that anybody is actually going to be looking to use it. The original draft of the Legal Services Regulation Bill certainly had the ethos to push the

professions closer together so that it would make it easier for them to fuse. There is a four-year consultation period in relation fusion and other issues but it doesn’t seem as though there is any appetite for a marriage of the two professions. I don’t think there is a huge demand for it.”

Judicial Appointments As we wrap up our interview, it would be remiss if I did not ask Paul about the hot potato that is the judicial appointment process. “I think there is still way too much flexibility given to the government, who have the actual final decision. The problem is for example, there is now ranking of recommendations from the Judicial Advisory Appointments Board. They are supposed to recommend seven names per position although they don’t always do that. The problem with the “Shane Ross Bill” is that it doesn’t take away the government’s absolute discretion to avoid the recommendations. The government can still do what it wants. It does reduce the numbers to three and allows them to be ranked and interviewed and so on but we have major concerns with it. We disagree with the Law Society on the massive problem with the lay majority and the Chief Justice not being the chair. I think more fundamentally, judges tend to have a better idea about what is required to be a judge than anyone else.” At 47, Paul McGarry is a man ticking all the boxes and in command of his brief. His political nous, legal insight and managerial skills make this man one to watch for the future. P the Parchment 29

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Restorative Justice

Matthew Kenny is a partner at O’Sullivan Kenny Solicitors. He is a council member of the DSBA

Road Rehab Matthew Kenny reports that leading social justice charity, Extern, has introduced a new Restorative Driver’s Programme (RDP) to the Republic of Ireland for persons convicted of road traffic offences

It is the hope of Extern that solicitors who practise in criminal defence and road traffic law will consider the merits of the RDP

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t is a bold initiative which aims to change the behaviour of offenders in order to prevent further offending. The target audience of Extern’s RDP are those drivers aged 17 and over who have been charged with, or convicted of, a road traffic offence, and those looking for the early restoration of their driving licences following a ban exceeding two years. The range of offences are at the discretion of the judiciary or Probation Service, but may generally include dangerous and careless driving offences, and driving under the influence. Extern hopes to introduce this programme to solicitors, gardai and the judiciary in the coming months on a countrywide programme of publicity and education. It is the hope of Extern that solicitors who practise in criminal defence and road traffic law will consider the merits of the RDP and that the judiciary will see that the justice of the case can often be met by utilising this programme. The RDP puts the onus of hard work and discipline on the offender and consists of four modules running across four weeks, with each session lasting for three hours. The course takes place in a non-judgemental environment where participation and discussion are encouraged to bring about peer learning, empathy and an understanding of the consequences of risky or careless driving behaviour. The modules are generally

delivered on weekends or evenings to facilitate those who are in education or employment, and include a number of course components designed to rehabilitate and educate. Upon completion of the programme, an evaluation of the individual participants will be made available to the sentencing court and where applicable, the participant’s solicitor. Facilitators will also complete course evaluations to allow for the highlighting of any issues, and afford an opportunity to make any necessary changes to continually improve the course. The team behind Extern’s RDP has been recognised for its work in in this area and has received the Leading Lights Supreme Award (2016) from the Road Safety Authority; the AONTAS (2016) Award for Adult Education, and the Impact Award (2015) from Social Entrepreneurs Ireland. The project’s staff are trained at the Road Safety Academy of Great Britain, and Extern is also a member of the National Association of Driver Intervention Providers. Extern would be delighted to discuss the programme with solicitors or members of the judiciary and invite those interested in finding out more about the RDP can contact Extern’s Driver Interventions co-ordinator Gary Doggett via email at gary.doggett@extern.org or by telephoning Gary on +353 (0)86 130 4780. 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

Are you ready to go the way of the Yellow Pages? In the week that I write this I read that the Yellow Pages in the UK will cease printing in January 2019

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he Yellow Pages (or the Golden Pages as we know it here) was a huge, and for many the only part of the marketing arsenal for many solicitors for a very long time. It may now seem very dated, indeed if you were born after 1990, it may seem utterly incomprehensible, but it was a very big deal for solicitors. It was of course, a directory for all sorts of businesses, but it was specially a marketing mainstay for the legal profession and certain parts of it in particular. Indeed, the emergence of personal injury advertising in the Golden Pages during the 1990s may well have informed much of the 2002 advertising regulations here. The Yellow Pages was a disruptive innovation in its time. First printed in 1966, it suddenly gave consumers the ability to reach and search far further with their telephones than they could schlep around their local area on foot and it enabled them to do it all from the comfort and convenience of their armchairs; it literally let their fingers do the walking. So the telephone set in the hallway birthed the Yellow Pages and its smartphone grandchild in our pocket gave it the kiss of death. Now we don’t need printed directories, we just search online directly on our phones. The Yellow Pages has been in steady (now terminal) decline for many years for obvious reasons, and so the news that it is to finally stop printing will not come as any surprise, in fact many will have assumed that it stopped years ago. And there are many lessons and parallels here for the legal profession from this old stalwart that was, for so long, so dear to our hearts.

The most striking point is that people are still searching for what they were searching for in the Golden Pages; they’ve just taken their eyeballs elsewhere, to their smartphones. The market is still there, it has just shifted its attention and changed media. But, while the Yellow Pages is to stop printing in the UK (I don’t know what the position is with our dear old Golden Pages here), Yell, the company that owns the Yellow Pages, is not going out of business. You didn’t even need eyes to be able to observe the forces that have been at play in this sector for years. All you needed to do was heft the copies of the Golden Pages you received through the door year on year to notice that they had been getting dramatically lighter and thinner. And presumably this wasn’t lost on Yell, which will have been experiencing a similarly slimmed down advertising revenue from the print edition over the same period. So the business has been busy repositioning itself in the digital marketing space for quite some time and the cessation of the print edition was in fact announced as a move to a fully digitised business model. The point is that they have been preparing for this for years. Businesses no longer use the Golden Pages, but they still need to market their businesses, now more than ever. Yell has steadily moved to helping companies market themselves online: providing pay per click advertising services, website services and of course, it has its own online search database which it has been developing for years on the back of its print publications. Its future success lies in how well it manages to serve the needs of modern businesses as a digital marketing agency. It has unique experience in selling such services to small

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Autumn 2017 dsba.ie

Practice Management

and medium businesses which it has been doing very successfully for 51 years. The writing has been on a wall for the Yellow Pages for years. Yell saw this and has been preparing for this inevitable day throughout that time. Whether they are successful in doing so remains to be seen, but it no longer has anything to do with the print edition of the Yellow Pages, which will soon become a historical curiosity. And here is the point for you: could you do the same? From one perspective the decline of the print edition of the Yellow Pages may look like the slow death of an industry. But it’s not, it’s just change. The market the business serves still exists, consumers are still searching for products and services and companies are still looking for customers. All that has happened is that how they are brought together has changed and Yell’s job is to make sure it can perform a useful function in between the two. The legal profession, particularly the small firm sector, may be viewed like the Golden Pages (just not

quite so modern and helpful!). We tend just to do things in the way that they have always been done without any thought to whether that is the way that people want them. There is no doubt that the need for legal services will continue as long as we have society, and that need is continually growing and changing, with new practice areas and opportunities arising constantly. The legal landscape that our prospective clients have to navigate has been transformed over the last number of decades by vast amounts of new legislation and regulation, all of which is grist to the mill for lawyers. And yet the vast majority of the small and medium firm sector seems to insist on continuing to operate as if none of this had happened, and stubbornly cling for their survival to working the same three old reliables of conveyancing, probate and personal injuries that were the mainstay of practice before we even had the Golden Pages, in largely the same way that they have always been done. The writing on that wall is plain to see too. The Yellow Pages saw theirs and started doing something about it while they still had time. Have you? P

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Lis Pendens James Meighan examines the hot topic that is lis pendens and says that issues have arisen frequently in light of recent receiver sales

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is pendens is a registered burden indicating that litigation is pending in relation to an interest or estate in certain lands. The lis pendens is registerable with regard to litigation in both the Circuit Court and High Court. The term lis pendens translates from the Latin ‘litigation pending’.

History of the lis pendens Prior to the enactment of the Land and Conveyancing Law Reform Act 2009 (the “2009 Act”), the law on lis pendens was largely governed by the Judgements (Ireland) Act 1844 (the “1884 Act”). The original concept of the lis pendens was to offer protection to the bona fide purchaser for value without notice (equity’s darling) as the law prior to the 1884 Act, provided that once proceedings issued concerning a dispute in relation to an interest or estate in certain lands, a person subsequently dealing with the land, where that person was the purchaser, lessee or mortgagee took the land subject to all the rights and liabilities which may arise from the litigation, irrespective of whether they had notice of the litigation as enunciated by the Lord Chancellor in Gaskell .v. Durdin (1812). To alleviate the hardship on the bona fide purchaser, Parliament enacted the 1884 Act. Section 10 of that Act provided that no lis pendens could bind or affect a purchaser or mortgagee who has no express notice of such an action, unless and until a memorandum containing the requisite details concerning the litigation were registered in court. As with a number of property-related statutes from the 19th century, the legislature took the opportunity in the Land and Conveyancing Law Reform Bill 2006, later the 2009 Act to bring the lis pendens into the 21st century. The pertinent section in the 1884 Act, Section 10 is largely re-enacted in Section 121 of the 2009 Act. Section 121 provides that the Central Office of the High Court will maintain a register of lis pendens affecting land.

Registration of a lis pendens Order 72A of the rules of the superior courts [as inserted by Rules of the Superior Courts (Land and Conveyancing Law Reform Act 2009) 2010 (S.I. 149/2010)] sets out the procedure for both registration and the vacating

of a lis pendens. Once proceedings issue, in either the Circuit Court or the High Court, the lis pendens can be registered in the Central Office, it is not even necessary to serve the proceedings prior to registration. In Re Kelly’s Carpetdrome [1984] ILRM 418, the court stated that there was no requirement to specify any particular lands when registering a lis pendens; recording a claim over all the assets which a person or company owns should suffice. However in Tola Capital Management LLC .v. Joseph Linders and Patrick Linders (No. 2) [2014] IEHC 324 the High Court stated that in order to come within the statutory definition, under the 2009 Act, a party seeking to register a lis pendens must establish the following: 1. The plaintiff is claiming a proprietary interest in land, 2. That the defendant has an estate or interest in the land in which the plaintiff is claiming an estate or interest, 3. That the proceedings themselves make a claim to a proprietary estate or interest in the said lands. The decision in Tola requires more precision on the part of the applicant when registering a lis pendens, than that required in Kelly’s Carpetdrome. Order 72A requires that a copy of the originating document (summons or originating notice of motion) in the relevant litigation be furnished to the Central Office. The particulars to be registered include the name, description and usual place of residence or registered office of the person or company registering, the name and place of business of his solicitor, the name and description and usual place of business or registered office of the person whose lands are to be affected, and the court on which the action was commenced, the date on which it was commenced and the title and record number of the action. There is conflicting authority on the procedure for registration over registered land. Section 69(1)(i) of the Registration of Title Act 1964 states that a lis pendens should be registered as a burden on the folio. However, in Dan Morrissey (Irl) Limited v Morrissey [2008] IEHC 50 Clarke J. (as he then was) stated that registration of the lis pendens in both the Central Office and the Land Registry were not necessarily required, and registration in the Central Office would be sufficient. In light of the

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Autumn 2017 dsba.ie James Meighan is a solicitor at Eugene F Collins. He is a member of DSBA Litigation Committee

conflicting authorities, it would be prudent, as it relates to registered land, to register the lis pendens in both the Central Office and the Land Registry. As regards unregistered property, the lis pendens is registered in the Central Office only (unless an order of the High Court directs registration in the Registry of Deeds).

Effect of Registration The registration of a lis pendens puts prospective purchasers of the property on notice of the existence of pending litigation, over the property in question. While a lis pendens is not a bar to the transfer of property, the value of the property could be greatly reduced as the prospective purchaser takes the land with the knowledge of a potential competing claim/dispute over the lands. In reality, a conveyancer would strongly advise a prospective purchaser against closing any such sale until the lis pendens has been removed from the title.

Vacating a lis pendens Prior to the Supreme Court decision in Flynn v Buckley [1980] IR 423 it was believed that the court had no jurisdiction to vacate a lis pendens without the consent of the person who registered it or until the litigation had been determined. The 2009 Act provides two mechanisms to vacate a lis pendens: 1. With the consent of the party who registered the lis pendens pursuant to Section 122 (a) of the 2009 Act (Form 32 of SI No. 149 of 2010); 2. By order of the Circuit Court or High Court pursuant to Section 122 (b) of the 2009 Act. Section 123 of the 2009 Act provides that the court may vacate a lis pendens on the application of the person on whose application it was registered or any person affected by it. Section 123 goes on to set out the jurisdiction of the court when considering an application to vacate a lis pendens. The court may vacate a lis pendens on one of two grounds: 1. Where the action to which the registration relates has been discontinued or determined, or 2. Where the court is satisfied that there has been an unreasonable delay in prosecuting the action or the action is not being prosecuted bona fide. The first ground is clear and a number of cases have

Property Litigation

arisen under the second ground of jurisdiction. In Tola Capital Management LLC v Joseph Linders and Patrick Linders (No. 2) [2014] IEHC 324 Cregan J stated that the court can vacate a lis pendens where it is satisfied that the action as a whole, is not being prosecuted in a bona fide manner or if particular steps in the prosecution of the action are not being taken in a bona fide manner. Laffoy J in Gannon v Young [2009] IEHC 511 stated that if an action was doomed to failure, the plaintiff in such an action could be considered not to be prosecuting the action bona fide, thereby allowing a party to raise the inevitable failure of the proceedings as a ground to seek to vacate a lis pendens.

Problems with the Modern lis pendens The modern lis pendens is open to abuse. There is a disconnect between on the one hand, the ease with which one can register a lis pendens and on the other hand, the process to vacate which must be engaged in by a person who is affected by its registration. If the party who registered the lis pendens consents to vacate, there is no issue. The difficulty arises where the party who registered it, refuses to remove it, thereby forcing the affected party to make an application to the High Court seeking an order vacating the lis pendens. Since the crash, in certain situations where receivers have been appointed over the assets of borrowers, these borrowers have registered lis pendens over properties in an attempt to hinder the receivers in attempting to realise assets. This leaves the receiver in a difficult position and if the dispute cannot be resolved, the receiver is required to seek injunctive relief, under section 123 of the 2009 Act seeking to vacate the lis pendens. While there has been a number of recent illuminating decisions of the courts in this area, Kelley & O’Kelly v IBRC [2012] IEHC 401 and O’Connor v Cotter [2017] IECA 25 it is incumbent upon government to adopt a system for registration and the vacating of lis pendens in a more equitable and proportionate manner to all parties, ensuring that a party can register a lis pendens to protect their position but not allowing that party to abuse the process by putting the party affected by its registration to the time and expense of a High Court application. P

In light of the conflicting authorities, it would be prudent, as it relates to registered land, to register the lis pendens in both the Central Office and the Land Registry

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High Court Refers Data Protection Case to the EU Jeanne Kelly and Peter Bolger report on the recent case of Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems

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he High Court in Ireland has decided to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU) in proceedings between the Data Protection Commissioner, Facebook Ireland Limited and data privacy activist Maximillian Schrems. These proceedings concern the transfer of personal data by Facebook Ireland Limited to its parent company in the US, Facebook Inc, and it raises issues as to whether this is lawful under Irish and EU data protection law.

Background Schrems, at the time an Austrian graduate student, had filed a complaint with the Data Protection Commissioner in which he claimed that the transfer of his personal data by Facebook Ireland Limited to its US parent company was unlawful. EU and Irish law prohibits the transfer of personal data to a country outside of the European Economic Area (EEA) unless that country provides an adequate level of protection. Following the initiation of judicial review proceedings before the High Court arising from the Data Protection Commissioner’s investigation, a reference for a preliminary ruling was made to the CJEU.

‘Safe Harbour’ Decision Struck Down The CJEU held that the ‘Safe Harbour’ decision which had facilitated the transfer of personal data outside the European Economic Area, was invalid in that it failed to afford EU citizens the right to an effective remedy before US courts for any breaches of the rights to respect for private life and the protection of personal data guaranteed

by the Charter of Fundamental Rights of the EU.

Investigation by Data Protection Commissioner

After the CJEU ruling was delivered, the matter returned to the High Court where an order was made returning Schrems’ complaint to the Data Protection Commissioner for investigation. The Data Protection Commissioner reopened her investigation, but formed the view that she could not conclude without obtaining a further ruling from the CJEU as to the status of three decisions of the European Commission in relation to the validity of standard contractual clauses that facilitate the transfer of personal data outside the EEA.

High Court Proceedings The Data Protection Commissioner then brought further proceedings before the High Court in which she sought declarations as to the validity of the standard contractual clause decisions issued by the European Commission, having regard to the rights to privacy, the protection of personal data, and the right to an effective remedy guaranteed by the EU Charter. Since only the CJEU can make a ruling as to the validity of any EU law including decisions issued by the European Commission, the Data Protection Commissioner also sought a further reference to the CJEU for a preliminary ruling. The High Court, in a preliminary ruling in July 2017, recognised that the outcome of these proceedings had potentially significant economic and commercial consequences for a range of companies and individuals across the EU. The High Court granted a number

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Autumn 2017 dsba.ie Jeanne Kelly and Peter Bolger are both partners at LK Shields Solicitors and they specialise in intellectual property, technology and privacy law

of governmental, business and non-governmental organisations permission to participate in the proceedings as amici curiae (friends of the court) including the United States of America and the Business Software Alliance which represents the interests of global technology providers including Apple, IBM, Microsoft and Intel.

High Court Judgement In a judgment delivered on 3rd October 2017, the High Court has decided to make a reference for a preliminary ruling to the CJEU. In doing so, the court held that the Data Protection Commissioner had raised well-founded concerns as to the validity of the European Commission decisions on standard contractual clauses, particularly in relation to the absence of an effective remedy in US law for an EU citizen whose data is transferred to the US, where they may be at risk of being accessed and processed by US state agencies for national security purposes.

The court found that the adoption of the EU/US Privacy Shield Decision following the striking down of the Safe Harbour Decision, did not mean that a reference to the CJEU should not be made. In particular, the court was of the view that a decision from the CJEU was required to determine whether the introduction of the Privacy Shield Ombudsperson represented an adequate remedy for the protection of the rights to privacy and personal data protected under the EU Charter. The court further held that a decision of the CJEU was required to determine whether the existence of an exceptional discretionary power on the part of the Data Protection Commissioner to suspend or ban the transfer of data to a country outside the EEA was sufficient to secure the validity of the standard contractual clause decisions. The court has given the parties to the proceedings an opportunity to consider the written judgment, and will hear further submissions on the questions to be referred to the CJEU. P

Data Protection

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Supreme Court Upholds Significant Bullying Case The Supreme Court has upheld the decision of the Court of Appeal in relation to a claim brought by Ms Úna Ruffley against her employer, St Anne’s School, Kildare in which she sought damages for personal injuries as a result of alleged workplace bullying. Ciara McMahon profiles the case

T

he Supreme Court agreed with the Court of Appeal’s decision to overturn the initial ruling of the High Court (in which Ms Ruffley was awarded substantial damages in the amount of €255,276). This was on account of the fact that although the disciplinary procedures followed by the school were significantly flawed, the impugned conduct did not amount to “bullying” for which an award of damages could be made. A number of valuable insights may be distilled from this judgement regarding: • Whether an unfair and flawed disciplinary process may constitute bullying; and • What may or may not constitute workplace bullying in light of the accepted definition of bullying under the 2002 Code of Practice Detailing Procedures for Addressing Bullying in the Work Place, (Declaration) Order 2002 (which was considered further in Quigley v Complex Tooling); • The importance of evaluating the facts of a claim carefully, and appropriately framing and directing the ensuing cause of action.

Background Facts Ms Úna Ruffley had been employed as a special needs assistant (SNA) in St Anne’s School for over ten years ‘without notable incident’. The school itself caters to children with intellectual disabilities between the ages of four and 18. The case itself arose from an incident on 14

September 2009 when she was with a pupil in the school’s “sensory room” – a room used for one-to-one development of a child’s sensory perception. The room could be locked from the inside and Ms Ruffley maintained that it was “normal practice” for SNAs to lock the door in order to prevent other pupils from entering and disrupting the session and to prevent children, some of whom were very active, from running out of the room. On the date in question, Ms Ruffley was in the room working with a young pupil described as “an extremely active child who suffered from ADHD”. During their session, somewhat unusually, he fell fast asleep and consequently Ms Ruffley telephoned the boy’s teacher to ask for instructions as to whether she should wake him. The teacher in turn contacted the headmistress, Ms Dempsey. After Ms Dempsey received the call, she went to the room where she discovered that the door had been locked from the inside, and she was only able to gain entry on her third attempt. The following day, Ms Ruffley was informed by the principal that she was handling the matter in the context of the school’s disciplinary procedure. Ms Ruffley alleged that she was shocked by this encounter in light of the fact that it was common practice for SNAs to lock the sensory room door. Shortly afterwards, a second incident arose whereby Ms Ruffley incorrectly completed a pupil’s scorecard. While Ms Ruffley accepted that she had made the error and sought to correct it, the principal refused to

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Autumn 2017 dsba.ie Ciara McMahon is a solicitor in both the employment and commercial and business teams at Hayes Solicitors. She is a member of the DSBA Younger Member’s Committee

accept Ms Ruffley’s explanation. Instead, she considered Ms Ruffley’s error to amount to “falsification” and as such, it constituted a disciplinary issue. Ultimately, having heard the evidence of Ms Ruffley’s conduct as presented by the principal, the board opted to issue a stage 4 final warning, a sanction just short of dismissal, and her next salary increment would be deferred. Ms Ruffley appealed this sanction but shortly afterwards went on sick leave due to work-related stress and she did not return to work.

High Court Ms Ruffley thereafter brought a claim against the school to the High Court in which she sought damages for personal injuries as a result of alleged workplace bullying. She alleged that the school’s conduct as regards the disciplinary process amounted to “workplace bullying” as defined under the 2002 Code of Practice Detailing Procedures for Addressing Bullying in the Work Place, (Declaration) Order 2002: “repeated, inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment which could reasonably be regarded as undermining the individual’s right to dignity at work”. The above definition was accepted as an appropriate working definition of “bullying” throughout the various stages of Ms Ruffley’s claim before the courts.

The High Court ultimately found in Ms Ruffley’s favour holding that she had been subjected to repeated inappropriate behaviour throughout the disciplinary process that had affected her dignity in the workplace and caused her a personal injury (namely an anxiety and depressive disorder). She was awarded €255,276 for damages and loss of earnings. The Board of Management appealed the High Court’s decision to the Court of Appeal. The appeal was allowed but the school was required to pay Ms Ruffley part of the award, €100,000, in order to bring the appeal.

Court of Appeal In what was the first substantive judgement of the Court of Appeal in a claim of this nature, the court overturned the decision of the High Court by a two to one majority having found that the High Court’s finding had over-stretched the definition of “bullying”. An analysis of the definition itself was almost the entire basis of the Court of Appeal’s decision whereby the majority decisions of Irvine J and the President focused almost solely on the extent to which Ms Ruffley’s treatment throughout the disciplinary process did or did not satisfy the components of the definition. In considering whether the alleged conduct amounted to bullying, the court noted the test that is set out in the decision in Quigley v Complex Tooling which provides that in order to amount to “bullying” such conduct must be:

Litigation

While Ms Ruffley accepted that she had made the error and sought to correct it, the principal refused to accept Ms Ruffley’s explanation

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The court did not consider the conduct of a body acting outside its jurisdiction to be “inappropriate” in the sense intended by the definition of bullying

(i) repeated; (ii) inappropriate; and (iii) undermining of the dignity of an employee at work. The court noted that furthermore, in order to succeed in such a claim, a plaintiff must also prove that he/she suffered damage amounting to a recognisable personal injury as a result of the breach of duty of care on behalf of his/her employer. This requirement was not a major focal point of this particular case, as to whether or not Ms Ruffley had suffered from a psychiatric injury was not in dispute. The Court of Appeal ultimately found that while the board conducted the investigative and disciplinary process in a “hopelessly flawed manner” and the Court even went so far as to suggest that this could have entitled Ms Ruffley to seek declarations in relation to the invalidity of the impugned decisions, this nevertheless did not bring the conduct complained of “anywhere close to meeting the definition of bullying as set out in Quigley”. As regards the particular question as to whether there was “inappropriateness” the court also noted that the treatment to which Ms Ruffley had been subjected did not equate to the kind of “calibrated inappropriateness” which distinguishes bullying from other workplace wrongs. The court did not consider the conduct of a body acting outside its jurisdiction to be “inappropriate” in the sense intended by the definition of bullying.

Supreme Court At the outset of Ms Ruffley’s appeal to the Supreme Court, the court identified the core issue as being whether a claim for unfair procedures leading to an unfair result could itself amount to “bullying”. Ultimately, all seven judges were concurring in their judgment that the finding of the Court of Appeal should be upheld. While the court agreed that the disciplinary procedures followed by the school were inadequate and impermissible, in his judgement, O’Donnell J was of the view that the case is not one which fits squarely into the core understanding of bullying at work. In its determination, the court looked closely at the three components of the definition of bullying as follows: 1. The conduct complained of must be “repeated” – in his judgment, O’Donnell J noted that “when considering the question of repeated conduct, it is necessary to remember that what is required is inappropriate conduct undermining the individual’s dignity at work and not merely the plaintiff being able to point to more than one incident to which he or she complains”. He stated that on the facts of this case, it was not sufficient to say that because that process extended over a period of time and a number of different events, that it necessarily satisfied the requirement that the conduct must be repeated. 2. The conduct must be “inappropriate” – O’Donnell J could not agree that Ms Ruffley’s suggestion that a breach of fair procedures amounted to “inappropriate behaviour” within the meaning of the definition;

rather, the test looks to the question of propriety in human relations, rather than legality. He noted that in this case there was no suggestion of personally offensive behaviour such as “ridicule, personal antagonism or exclusion from a group… shouting in public, or the making of disparaging remarks in public or in private about work”. 3. The conduct must have the effect of undermining the dignity of an individual at work - O’Donnell J opined that this is perhaps the most important aspect of the definition as it “relates closely to the value which is sought to be protected by the law”. He noted that while the denial of fair procedures is never a trivial matter, he could not see how it can comfortably be said in this case to undermine human dignity. While Mr Justice O’Donnell believed the matters alleged in this case did not ultimately give rise to a successful claim for bullying, he pointed out that the level of disagreement among the judges who heard the case at the various stages of the claim demonstrated it was by no means a clearcut case. Although ultimately Ms Ruffley’s appeal failed, O’Donnell J stated that he “would be very slow” to order Ms Ruffley to repay to the school the sum of money paid as a condition of obtaining the partial stay (€100,000), or to pay costs. He said that instead, it would be desirable that the parties could reach their own agreement on these matters but in the event that no agreement could be reached, he would be prepared to hear argument and make a final decision.

Conclusion This case provides a very useful insight into the court’s interpretation of the definition of “bullying” and highlights that ill-treatment of an employee by way of breaches of fair procedures may not necessarily fit within this definition. This case also serves as a warning to ensure that the facts giving rise to a claim of this nature are carefully evaluated at the outset, and thereafter the most appropriate cause of action is pursued. In this case, the Court of Appeal noted that the matters giving rise to Ms Ruffley’s claim afforded her substantial grounds upon which she might have instituted plenary proceedings seeking a declaration of invalidity in respect of the board’s decision but “for whatever reason, she chose to eschew such an approach in favour of an action for damages for breach of duty on the part of her employer in respect of bullying in the workplace”. In addition, the Supreme Court pointed out that a difficulty with this case was that although it was framed with a heavy emphasis on fairness of procedures, the claim itself was not directed to a declaration of invalidity of a process or sanction. In hindsight, it therefore appears that this claim may have been somewhat misdirected. Although Ms Ruffley’s claim was ultimately unsuccessful, there is still a valuable lesson to be learned from this case for employers to ensure that fair procedures are properly applied to issues which arise in the workplace and to be extremely careful as to how such issues are managed by management. P

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Cryopreservation Ben Mannering examines the recent UK case of JS where an application was made by a 14-year old girl suffering from a rare form of terminal cancer, to have her body cryopreserved post death

R

e: JS (Disposal of Body) [2016] EWHC 2859 (Fam) concerned the application of a 14-year old girl for an order to secure her wish to be cryopreserved upon death. The girl applied to the High Court as her parents could not agree what was to happen to her body after death. Cryonics is the freezing of a dead body in the hope that resuscitation and cure, may be possible in the future. Whilst the theory may seem futuristic and there is debate regarding its ethical implications, JS presented as a bright, intelligent young girl and articulated strongly her views notwithstanding attempts to persuade her otherwise. The process involves quite a complicated arrangement which must take place in a relatively short period of time after the death of a person and thus requires a lot of co-operation from a hospital. The hospital in question liaised with the Human Tissue Authority (“HTA”) which confirmed that what was suggested was not regulated by statute and therefore they had no remit. Note the now lapsed bill of Senator Fergal Quinn for Ireland’s equivalent; Human Body Organs and Human Tissue Bill 2008. The child’s mother supported her wishes, however her estranged father had issues with the proposal, not least the funding of same. The court dealt with three specific legal issues: (1) The specific issue order; (2) Disposition of a body; and (3) Prospective decisions.

1. The Specific Issue Order The issue itself, whilst quite complex and unusual could be governed by Section 8 of the Children Act 1989 where a specific issue order is “an order giving directions for the purposes of determining a specific question which has arisen, or which may arise, 42 the Parchment

in connection with any aspect of parental responsibility for a child”. Whilst this does not regulate events arising after the child’s death (R v Gwynedd County Council, ex p. B [1992] 3 All ER 317), the specific issue is governed by the general welfare principle. JS’s acute emotional needs at the time of seeking the order were best met by the order granting her mother the right to make arrangements during the child’s lifetime for the preservation of her body after death. The court did not necessarily approve the choice of the arrangements, it simply gave JS and her mother the opportunity to make that particular choice.

2. Disposition of the Body Firstly, a person under 18 cannot make a will (Wills Act 1837, S.7). The parents would be entitled to a grant of administration over the deceased’s estate and therefore a duty to arrange for the disposal of the body. Whilst disputes have been dealt with previously (See Fessi and Hartshorne v Gardner [2008] EWHC B3 (Ch)), the court can use its inherent jurisdiction to decide such disputes. The law regarding the disposition of a dead body emanates from Williams v Williams [1882] LR 20 ChD 659 where it was established that a dead body is not property and therefore cannot be disposed of by a will. The administrators and/or executors have the right to possession and must arrange for the proper disposal. Proper disposal has not been defined. Therefore there would not appear to be a decision to dictate how one’s body is disposed of after death. As such, one’s wishes cannot determine or bind third parties nor is the court’s role to give directions for the disposal to resolve disagreement as to who may make the arrangement. Therefore,


Autumn 2017 dsba.ie Ben Manning is a solicitor/claims manager with the State Claims Agency. The views in this article are personal and do not reflect the views of the National Treasury Management Agency

can one seek an order in life to take effect after death?

3. Prospective Decisions What JS was essentially seeking was a prospective order to take place after her death. In the instant case, in light of the post death arrangements being sought, there would not be time for litigation as time is of the essence in cryonics. Why so? Cryopreservation is a process where organelles, cells, tissues, extracellular matrix, organs or any other biological constructs, susceptible to damage caused by unregulated chemical kinetics, are preserved by cooling to very low temperatures (typically -80°C using solid carbon dioxide or -196°C using liquid nitrogen). Time is very much of the essence in cryopreservation. The court firstly stated that it should not stray into deciding hypothetical questions and provided ample authority for this proposition. The court took comfort from the case of Hugh v Bourne [2012] EWHC 2232 (Ch) where trustees sought advance approval for a planned use of their powers. The trustees therein did not wish to surrender the discretion to the court, but merely asked the court to give its blessing to their proposed course of action. The court took further comfort from the High Court of New Zealand in Re JSB (A Child) [2010] 2 NZLR 236 (HC) where Heath J held that jurisdiction existed before a child’s death to decide appropriate funeral arrangements after death. A dispute arose between his grandparents (carers) and his birth parents as to funeral arrangements if he were to die. The court found that to protect the child’s best interests after death, inherent jurisdiction

of the court can be used to make such an order. Notwithstanding the fact that Heath J felt an order in that case would be premature, his decision was noted by the New Zealand Supreme Court in Takamore v Clarke, [2012] NZSC 116, at para 91a case concerning a disagreement arising after death. The High Court herein satisfied itself that it could make a prospective order and made the following specific issue order permitting the mother to continue to make arrangements during JS’s lifetime for the preservation of her body after death. The court also issued an injunction preventing the father from making such arrangements and interfering with the arrangements made and a prospective order finding the mother the sole administrator of her estate (instead of the father and mother jointly) and specifying that the mother should thereby have the right to make arrangements for the disposal of the body and to decide who should be permitted to view it.

Postscript JS unfortunately died on 17th October 2016. Whilst the death was described as peaceful, it would appear as though her mother was preoccupied with the post-mortem arrangements on the child’s last day, at the expense of being fully available to JS. Further, the volunteer organisation in question appears to have been under equipped and disorganised, resulting in pressure being placed on the hospital to allow procedures that had not been agreed and whilst the body was prepared for cryonic preservation, the way in which the process was handled caused concerned to the medical and mortuary staff. It has been suggested that there is a need for proper regulation of cryonic preservation to prevent such failures occurring in future. P

Future Law

The court did not necessarily approve the choice of the arrangements, it simply gave JS and her mother the opportunity to make that particular choice

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In Practice

CYBERJUSTICE The European Commission for the Efficiency of Justice (CEPEJ) has released Guidelines on how to drive change through Cyberjustice, a comparative study of different approaches taken by Council of Europe member states to utilise information and communication technologies (‘ICT’) as part of the dispute resolution process to

CROSS BORDER E-JUSTICE IN EUROPE On 17th July 2017, the European Commission published the Inception Impact Assessment on Cross Border e-Justice in Europe (e-CODEX). The Inception Impact Assessment can be interpreted as the first step to establish e-CODEX into a pan-European instrument by way of regulation. This publication is only a preparatory initiative for the actual impact assessment which will be undertaken in the next months and where they will consider in more detail and the various scenarios for the sustainability and future governance structure of e-CODEX. For those unaware of the project, e-CODEX is designed to make justice faster throughout the European Union. The intention is to provide secure ICT solutions for cross-border exchange of sensitive data through the courts and judiciaries. E-CODEX provides solutions that allow inter-operability between national applications in different EU member states and associated countries without them having to change their own IT infrastructure. It provides secure, cross-border, electronic communications between the e-Justice application

LAW SOCIETY NOTICE The Law Society recently circulated a notice stating that it is prohibited for solicitors to approach members of the public with a view to representing them in court. The notice goes on to state that if you are looking for a solicitor for court, please either: 1. Request your own solicitor be in attendance for your 44 the Parchment

provide access to justice, assist communications between courts and professionals, streamline court administration and offer direct assistance. The document also gives guidance on adopting a strategic approach to developing information systems for court administration. Marcus Hanahoe

through signature verification. It provides secure and reliable cross border routing and transportation of documents and data and provides for the handling of documents and meta data for cross-border judicial procedures without changing existing national standards. Implementing the technical components, e-CODEX reverts to internationally accepted standards like AS4, a specification of OASIS ebMS 3.0. All of the technical components are open source which allows them to be used, advanced and linked to national systems. The European Commission has commented that the judicial sector has been lagging behind in terms of digitalising cross-border co-operation and judicial procedure, and this initiative is designed to start to overcome this perceived deficit. The e-CODEX system was developed under the Competitiveness and Innovation Framework Programme by consulting with 22 member states (10 member states have installed and are actually using the system as of today’s date) which was partially funded by grants from the Commission at a cost of €28m. Greg Ryan

court date. 2. You can find a solicitor by visiting the Law Society website. 3. If you do not have a solicitor, please ask the judge at the start of your court case, and a solicitor may be appointed to represent you. Barra O’Cochlain


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DSBA Commercial Law Seminar The Commercial Law Committee of the DSBA hosted a seminar on 27th July 2017. The topics for discussion were: 1. The General Data Protection Regulations; 2. Commercial Case Law update to include an update on penalty clauses (with particular focus on the enforceability of surcharge interest) and recent developments in the law on implied duties of good faith in commercial contracts; 3. Company Legislation Update to include amendments to the Companies Act 2014 brought about by the Companies (Accounting) Act 2017. The speakers were John Lavelle, BL; John Darby, Flynn O’Driscoll and Paul Egan, Mason Hayes & Curran. The seminar was chaired by Robert Ryan, Vice President of the DSBA and Chair of the DSBA Commercial Law Committee. Paul Ryan, DSBA Commercial Law Committee

Diarmuid O’Brien and Mark O’Callaghan

John Darby, Flynn O’Driscoll and DSBA Commercial Law Committee; John Lavelle, BL; Paul Egan, MHC; Robert Ryan, DSBA Council and Paul Ryan, DSBA Commercial Law Committee

Lorna Osborne, EFC and DSBA Commercial Law Committee; John Darby, Flynn O’Driscoll, DSBA Commercial Law Committee

William Tarrant and Fiona Brennan

Matheson open San Francisco office Matheson has announced the opening of their second Californian office, adding to their presence in Paolo Alto in the Silicon Valley. Partner Mark O’Sullivan will head up the San Francisco office together with technology and privacy partner, Chris Bollard. Commenting on the opening, Michael Jackson, Matheson managing partner said:

“Matheson is a market leader for Irish legal services - and the opening of our San Francisco office continues our track record of servicing our clients where they are located and providing immediate access to Irish legal advice and support on the most complex legal matters. Our new San Francisco office allows us to support our West Coast client base with

operations in Ireland, and also our Irish client base accessing international markets. “We are seeing growth in the areas of technology, data protection, fintech, intellectual property, international corporate transactions and tax. The new office will focus on these areas as well as other key areas including pharma, medtech and financial services.”

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Autumn 2017 dsba.ie

News

John Hearne

Architect of the 1937 Constitution of Ireland By Eugene Broderick As we celebrate the 80th anniversary of the 1937 Constitution of Ireland this year, it is timely that the first-ever biography of its ‘architect in chief and draftsman’ should appear. In the six-year period that it took to draft the constitution, John Hearne was involved at every stage alongside Éamon de Valera. Hearne’s attitudes and concerns – especially with the protection of human rights in a period which saw the rise of dictatorships throughout Europe – governed

the make-up of the fundamental law. This underpinning document still stands today and reverberates with every call for referendum or repeal. John Hearne Architect of the 1937 Constitution is available in hardback, RRP €29.99 in bookshops, online and from www.iap.ie. Eugene Broderick deserves great credit for this fine publication which maps the shaping of our Constitution and assesses its place in Irish history.

Chief Justice launches DSBA Employment Law Committee The Chief Justice Frank Clarke formally launched the DSBA’s new Employment Law Committee at a well attended reception in the Radisson Hotel, Golden Lane which was kindly provided by LK Shields Solicitors. DSBA President Aine Hynes said it was a great honour for the DSBA to have Mr. Justice Frank Clarke launch the committee. Marguerite Bolger SC also spoke at the event and provided a very interesting discussion on recent case law in the area. The new committee is chaired by Ciara O’Kennedy,

Partner at LK Shields. The new committee also consists of: • Ken Breen, Shannon & O’Connor Solicitors; kbreen@shannonoconnor.ie; • Anna Broderick, Eversheds Sutherland Solicitors; annabroderick@ eversheds-sutherland.ie; • Julie Austin, McDowell Purcell Solicitors; jaustin@mcdowellpurcell.ie; • Dermot Casserly, Beauchamps Solicitors; d.casserly@beauchamps.ie; • Jim Waters, Waters & Associates;

jimwaters@waa.ie; • Peter Murphy; O’Mara Geraghty McCourt Solicitors; petermurphy@omgm.ie; • Laura Graham, Reddy Charleton Solicitors; lgraham@reddycharlton.ie • Aoife McFadden, Ibec; aoife.mcfadden@ibec.ie; • Mary Gavin, Hayes Solicitors, mgavin@hayes-solicitors.ie • Ailbhe Dennehy, A & L Goodbody, adennehy@algoodbody.com

Letter to the Editor Dear Sir, I thought you might like to know of the judgment of Mr. Justice Barr delivered on the 28th July 2017 in Antecki V MIBI and Others because of your DSBA President’s Trojan work in bringing about Practice Direction 71 re payment on account. I acted for Mr. Antecki, the Plaintiff in the matter. I understand it is the first written judgment where payment on account was granted, although there have been written judgments where payment on account was refused. The

differing decision in Heeney V DePuy is also referred to in the Antecki Judgment. The Bill of Costs in Antecki was prepared in accordance with the Court of Appeal judgment in Sheehan V Corr, hence the apparent difficulty with the Bill of Costs, which was overcome. Also, of crucial importance re Antecki judgment is that a Solicitor can go in to Court at any time and seek a payment on account without having to put evidence before the Court that there are long delays in taxation at the time the application is made.

I would like to say that Aine Hynes has been a great President of the DSBA and she was instrumental in bringing about the Practice Direction and she has been a great help in resolving the impasse in taxation of costs. As it is a positive good news story, I thought you might like to let Parchment readers know. Best wishes. Michelle Hayes, Solicitor, HAYES SOLICITORS, 2/3 Glentworth Street, Limerick. the Parchment 47

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News

Successful DSBA Event The DSBA Younger Members teamed up with Aperture Search and Advisory to host a panel discussion in relation to social media in the recruitment context. The event took place in the Stephen’s Green Hibernian Club and was very well attended. The panel consisted of Liz Ryan, partner, Mason Hayes and Curran; Jason Murray BL; and Mark Valentine of LinkedIn. Barry Crushell of Aperture chaired what was an interesting and lively discussion about the pitfalls for employers in using social media in the recruitment process.

Áine Flynn Appointed New Director of the Decision Support Service Dublin solicitor Áine Flynn has been appointed as the inaugural director of the Decision Support Service(DSS), a new part of the Mental Health Commission. The new service is due to be established under part 9 of the Assisted Decision Making (Capacity) Act 2015, which will be commenced later this year. The principal purpose of the new service is to support

decision-making by and for adults with capacity difficulties and to regulate individuals who are providing support to people with capacity difficulties. Áine has over two decades of experience as a practising solicitor. She formerly worked with KOD Lyons Solicitors. She is held in the highest esteem by her colleagues in the areas of criminal justice,

mental health law through her mental health tribunal work, High Court wardship cases and strategic litigation cases across a range of human rights areas. The DSBA and the Parchment send Áine our congratulations on her new appointment and we wish her well in her challenging new role.

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DSBA Annual Conference

The DSBA held a very successful annual conference in Santiago de Compostela, Spain from 21st to 24th September 2017. The business session took place in the Francisco Convent and the gala dinner was held in the Hostal Dos Reis Catolicos on 22nd September 2017. The DSBA would like to thank its conference sponsors - DX, CORT and the Webfactory.

Left to right: Keith Walsh speaking at DSBA business session in Spain

Left: Deirdre Walsh, Michelle Linnane and Michael Moran Far left: Aine Hynes, Stuart Gilhooly, Keith Walsh, Michael Boylan and David Walley

Right: Catherine White, Sheila Curran, Tim Glass and Patricia Glass Far right: Patricia Walley and Niall Cawley

Left: Phil McCarthy, Mary McCarthy, Anne Leech and Liz Dowling Far left: Marjorie Murphy and John Peart

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Autumn 2017 dsba.ie Photography: Michael Finn

Above: Eamonn Shannon, Patricia Walley Above: Stuart Gilhooly, Keith Walsh, David Walley and Michael Boylan. Right: Keith Walsh, DSBA President Aine Hynes and David Walley, sponsor - Cort Far right: Sean O’hUallachain, Rory O’Riordan, Denis Ryan and Stuart Gilhooly

Left: Elizabeth Lacy, Sharon McElligott and Eimear O’Doherty Far left: Peter McEvoy and Robert Ryan

Right: DSBA President Aine Hynes Far right: John Hennessy and John Lacy

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DSBA Cricket Day

John F Buckley Memorial Cup

The DSBA held the John F Buckley Memorial Cup cricket match between a Bar Council Select 11 and a DSBA select 11 at the Leinster Cricket Club on 30th June 2017. The DSBA would like to thank the Leinster Cricket Club for hosting this fantastic event. A superb day was had by all.

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Autumn 2017 dsba.ie Photography: Declan Corrigan

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DSBA Litigation and IP and Technology Law Seminar

The DSBA Litigation and IP and Technology committees hosted a CPD seminar on 25th May 2017. The seminar was entitled “Data Protection Law: Are you ready for the implementation of the General Data Protection Regulation in May 2018”. The speakers were Noel Travers, SC; Linda Ní Chuallagh. The seminar was chaired by Mr Justice Frank Clarke.

Photography: Michael Finn

Left to right: Speakers Paul Ryan; Susan Martin; Emma Redmond; Noel J Travers, SC; the Honorary Mr Justice Frank Clarke, Chair; Linda Ní Chuallagh; Elaine Morrissey

Left: Eimear O’Doherty, DLR Co; Caroline M Lindsay, CSSO. Far left: Jennifer O’Riada, O’Riada Solicitors.; Noel Travers, speaker

Right: Mark Finucane, Porter Morris Solicitors; Emma Redmond, LinkedIn. Far right: Emer Murphy and Gill Cotter, both Lavelle Solicitors

Left: Linda Ní Chuallagh, speaker; Deborah Kelly, Eugene F Collins. Far left: The Honorary Mr Justice Frank Clarke, Chair; Robert Ryan, Doherty Ryan Solicitors

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Autumn 2017 dsba.ie Photography: Michael Finn

Left to right: Speakers Eoghan Cole, BL; Kathryn Ward; Ronan McLoughlin; Marissa O’Keeffe; Seana Glennon

DSBA Property Seminar

The DSBA Property Committee hosted a CPD seminar on 8th June 2017. The seminar dealt with a residential tenancies update and the new DSBA Residential Tenancies Agreement was launched. The speakers were Eoghan Cole, BL; Marissa O’Keeffe, St John Solicitors; Kathryn Ward, Assistant Director of the Residential Tenancies Board and Seana Gleenon, Eversheds

Left: Christina SauerDechant, Charlton’s; Patricia Drumgoole, Drumgoole Solicitors. Far left: Alan Graham, AG Graham & Co; Neil Dunne, Byrne Wallace

Right: Darach Connolly, Darach Connolly; David Murphy, Corrigan & Corrigan. Far right: John Nelson, Nelson & Co; Kay Cogan, Cogan Daly

Left: Sinead Sheerin, Lavelles; Sarah Byrne, Hayes Solicitors. Far left: Marissa O’Keeffe, speaker; Ethna Ryan, Ethna Ryan Partners at Law; Jack Walsh, Jack Walsh Partners at Law

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DSBA Mental Health and Capacity Seminar

The DSBA Litigation and IP and Technology Committees hosted a CPD seminar on 25th May 2017. The seminar was entitled “Data Protection Law: Are you ready for the implementation of the General Data Protection Regulation in May 2018”. The speakers were Noel Travers, SC, Linda Ní Chuallaigh. The seminar was chaired by Mr Justice Frank Clarke.

Photography: Michael Finn

Left to right: Speakers Michael Lynn, SC; Professor Mary Donnelly, UCC; Orla Keane MHC; Niall Nolan

Left: Darius Whelan; Aine Hynes, President DSBA; John Neville Far left: Aine Hynes, President DSBA; the Honorary Mr. Justice Gerard Hogan

Right: John E Costello, Keelin Cowhey Far right: Karen Molloy, Eithne Casey

Left: Sharon Oakes, Roddy Tyrrell Far left: Tony Carmody, Karen Molloy

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Autumn 2017 dsba.ie Photography: Michael Finn

Right: Speakers Stephen Fitzpatrick, Aine Hynes, Michael Boylan, Niall Cawley

DSBA Litigation Seminar

The DSBA Litigation Committee hosted a CPD seminar on 29th June 2017. The seminar dealt with the recovery of legal costs. The speakers were DSBA President Aine Hynes, St John Solicitors; Michael Boylan, Augustus Cullen Law; Keith Walsh, Keith Walsh Solicitors and Stephen Fitzpatrick, Peter Fitzpatrick Legal Costs Accountants.

Left: Anthony D’Alton, O’Hanrahan Lally; Sheena Lally, General Solicitors Office; Rachel Butler, O’Hanrahan Lally; Garret Lally, O’Hanrahan Lally. Far left: Mary Cowhey, Mary Cowhey Solicitors; Joanne Cooney, McDowell Purcell Solicitors

Right: Aimee Dillon, Liston & Co; Sharon Devine, Brian D O’Brien & Co. Far right: Deirdre Farrell, Amorys; Veronica Kelly, Murphy McElligott

Left: Nessa McGerty, Pembroke Solicitors; Jonathan Lynch, Eugene F Collins Far left: Maura Derivan, Law Society Council; Geraldine Kelly, Geraldine Kelly & Co Solicitors

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DSBA Probate and Tax Seminar

The DSBA Probate and Tax cCmmittee hosted a CPD seminar on 4th July 2017. The seminar focused on the completion of the CA24 and the IT38. The speakers were Anne Stephenson, Stephenson Solicitors; Finola O’Hanlon, O’Hanlon Tax Limited and Annette O’Connell, Probate Officer, Courts Service.

Photography: Michael Finn

Left to right: Anne Stephenson, Stephenson Solicitors; Owen Burke, Beauchamps; Finola O’Hanlon, O’Hanlon Tax; Annette O’Connell, Probate Office; Aoife McFadden, DSBA

Left: Geraldine Kelly, Geraldine Kelly & Co Solicitors; Sharon McElligott, Murphy McElligott Far left: Aisling O’Leary, Cantillons Solicitors; Morette Kinsella, Kinsella Solicitor.; Phil McCarthy, McCarthy & McCarthy

Right: Aine Lynch, Hanley & Lynch; Paul Diamond, Paul Diamond & Co; Olga Harchakova, O’Shea Legal Far right: Brian Crowe, Brian Crowe & Co; Tom Noonan, Noonan & Son; Mark Ronayne, David R Fowler

Left: Patricia Drumgoole, Drumgoole Solicitors; Sheila Williams, O’Reilly Doherty & Co; Darach Connolly, Darach Connolly Solicitors Far left: Eoin O’Connor, O’Connor McCormack; Colm Murphy, Colm Murphy & Co

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Autumn 2017 dsba.ie Photography: Michael Finn

DSBA Litigation Seminar

The DSBA Litigation Committee hosted a CPD seminar on 20th July 2017. The seminar was entitled “Circuit Court Rules - a trap for the unwary?” The speakers were Susan Martin, Susan Martin Solicitors and Karl Dowling, BL. The seminar was chaired by Dublin County Registrar Ms Rita Considine.

Above: Laura Horan, DSBA; Jessica Hickey, Hibernian Law Above: Hilda Mannix, Ronan Daly Jermyn; Tadgh Kelly, Pearts Solicitors Right: Caitriona Hefferon, CSSO; Aisling Quinn, CSSO Far right: Speakers Karl Dowling, Susan Martin, Rita Considine and Hugh O’Neill

Left: Ali O’Reilly, O’Reilly Thomas; Elaine Corcoran, Corcoran & Co. Far left: Stephen King, A & L Goodbody; John Condon, A & L Goodbody

Right: Stuart Creavin, Creavin & Co; Aimee Dillon, Liston & Co. Far right: Susan Martin, speaker; Neal Boland, Smith Foy

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DSBA Annual Conference

The DSBA held a very successful annual conference in Santiago de Compostela, Spain from 21st to 24th September 2017. The gala dinner was held in the Hostal Dos Reis Catolicos on 22nd September 2017. The DSBA would like to thank its conference sponsors - DX, Cort and the Webfactory.

Above left to right: Eamonn Shannon, DSBA past President; Stuart Gilhooly, President Law Society; Michael Boylan, SC, speaker; Aine Hynes, President, DSBA; Gillian O’Connor; Simon Walsh, Webfactory, (sponsor); Judge Gerard O’Brien, Diego Gallagher, Patricia Walley and David Walley, CORT (sponsor) Left: Emer and John O’Malley Far left: Michael O’Doherty, Eimear O’Doherty and Deirdre McDermott Right: Keith Walsh and Moira O’Connor Far right: Stuart Stein, Kerry Graham and Pol O’Murchu

Left: Geraldine Madigan and Patricia Walley Far left: Mary and Peter McEvoy

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Autumn 2017 dsba.ie

Above: Aine Hynes and Simon Walsh Above Right: Kyran McGinley, Margaret McGinley, Carol Fitzsimons and James Fitzsimons RIght: Vincent McDonagh, Sharon McElligott, Anna Clancy and Joe Clancy

Left: Tim Glass, Patricia Glass, Shelia Curran and Josephine Ryan Far left: Deirdre Walsh and Tony O’Sullivan

Right: Mary Mulchrone and John Hennessy Far right: Sean O’hUallachain and Diego Gallagher

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IS THIS YOUR COPY OF THE PARCHMENT? ARE YOU ON OUR MAILING LIST?

Parchment DSBA.IE

the

D U B L I N S O L I C I TO R S ’ B A R A S S O C I AT I O N M AG A Z I N E | A U T U M N 2 0 1 7 | I S S U E 7 3

McKENZIE FRIEND OR FOE? New Courts Practice Direction

PAUL McGARRY SC CROSS-EXAMINED NEW FAMILY LAW CODE OF PRACTICE

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If not, please contact Maura Smith. Dublin Solicitors Bar Association, 1st Floor, 54 Dawson Street, Dublin 2, Ireland. Tel: 01 670 6089 • E-Mail: info@dsba.ie • Update your personal details online at:

www.dsba.ie

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Autumn 2017 dsba.ie

News

Photography: Ciaran Redmond

DSBA Forum with Law Society A myriad of topics of concern to the legal profession were discussed at a recent forum in Dublin with speakers from DSBA and the Law Society participating followed by a robust Q&A

A

forum with the Dublin Solicitors’ Bar Association and the President and Director General of the Law Society took place on 3rd October 2017. The forum was held at Blackhall Place and the speakers included Stuart Gilhooly, President of the Law Society; Aine Hynes, President of the DSBA and Ken Murphy, Director General of the Law Society. A variety of issues were on the agenda including: 1. Practice direction issued by the President of the High Court; 2. The real reasons for motor insurance premium hikes - rebutting insurance industry propaganda and setting the record straight in the media, at the Oireachtas Finance Committee, at Minister Eoghan Murphy’s interdepartmental working group and at the

new Commission chaired by retired Judge Nicholas Kearns. 3. Law Society litigation in the High Court followed by Court of Appeal and Supreme Court to clarify liability of the MIBI following the collapse of Setanta Insurance. 4. Crisis on Taxation of Costs System - lobbying and Law Society participation in Supreme Court appeal in Sheehan case. 5. Progress on implementation of the Legal Services Regulation Act, 2015. 6. New Section 150 Notices (to replace Section 68 letters) - what do we need to do and when? 7. Law Society campaign to restore cuts made to fees paid in criminal legal aid cases. 8. Implications of Brexit. Left: Ken Murphy, Director General of the Law Society; Aine Hynes, President of DSBA and Stuart Gilhooly, President of the Law Society at the forum Far left: A robust questions and answers session took place at the event

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Closing Argument Stuart Gilhooly

Stuart Gilhooly is current President of the Law Society. He is a partner at HJ Ward Solicitors Harold’s Cross and former editor of the Parchment. He writes in a personal capacity

The Legal Aid Timebomb

2

001. The first year of this century. A year which began with the twin towers in situ. When our currency was the pound. People smoked in public places and this was normal. Leo Varadkar was still in college. It sounds recent but it’s not. This country has seen boom, bust and the beginning of the next boom since then. It’s a full seven years before the crash began and in that time, house prices, income and cost of living have rose significantly. The legal profession has seen good times, very bad times and is now beginning to focus on the recovery. Everyone, that is, except the criminal lawyers. The most important part of any legal system. Left behind, marooned in 2001, watching the renascent economy sail off into the sunset without even waving goodbye. Criminal legal aid rates were cut drastically in 2009 and kept falling until 2011 till they reached the sort of levels last seen in 2001. No increase has been seen since. No one can complain that fees were cut at a time when the country was in the throes of financial meltdown and practitioners were prepared, at the time, to do their bit for the green jersey and take it on the chin. That was then, this is now. The last two years has seen many cuts to state funded schemes and salaries restored to prerecession levels. Government knew what was coming next if they didn’t and they stumped up. The hard-working, underpaid practitioners

who make their own money from the legal aid scheme have sat quietly waiting for their restoration. When passive expectation proved insufficient, they asked nicely. A very well argued, understated argument to simply be brought back to where they were in 2009 and or, at the very least, a start along the road to full restoration. So far nothing. Another budget come and gone and 2001 remains the payment standard. Now, it’s not that government doesn’t want to pay or that there aren’t other hands out while the Minister for Finance practises prudent financial planning. It’s just that nobody sees this issue as a priority. They’re wrong and this is dangerous. There is little more fundamental to a functioning democracy than access to justice when accused of a crime. It may be hard for some to stomach but everyone is innocent till proven guilty and even those admitting guilt are entitled to the best representation. That’s just the way it is in the western world and if we don’t care about that, then we are finished. We may as well sell our souls to Trump. Let’s assume we all agree on that. So where does this leave us? On the precipice of a major problem. Since the economy has begun its recovery, particularly in Dublin, cost of living has gone up, rents through the roof and salaries for newly qualified solicitors are on the rise. Insurance, administrative staff all cost more. Yet, fees remain the same.

Criminal legal aid rates were cut drastically in 2009 and kept falling until 2011 till they reached the sort of levels last seen in 2001. No increase has been seen since

The majority of trainee solicitors have a contract in a large firm now. Fewer and fewer are beginning life as either trainee or newly qualified solicitor in a firm doing criminal law. Salaries, benefits and career progression are quite simply more attractive elsewhere. The long hours and low glamour of the Garda station shift and the District Court doesn’t look like an episode of Law and Order. It’s not even Red Rock to be honest. Our criminal law fraternity cannot attract the young talent unless they have a vocation. These are few and far between. Most people choose the other door and who could blame them? The result is overworked solicitors, the same people all the time doing their best and most of the time doing an incredible job but something has to give. In the same way that we can’t expect young doctors to accept long hours and low pay nor can we demand the same from our solicitors in providing a service that is arguably as important. And that’s before mentioning the scandalously low family law legal aid rates. This column has spent the last year as Law Society President banging that drum but the noise has been drowned out by others shouting louder. Which is understandable but we need to start shouting ourselves as a profession. It doesn’t matter if it affects you or not because it should matter if you care about justice, fairness and right to proper representation. Are we all in? P

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