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D UB LIN SOLICITORS’ B AR ASSOCIATION MAGAZ INE | AUTUMN 2018 | ISSU E 77

NEW PERSONAL INJURIES LANDSCAPE AWAITS? New Plan to Establish Judicial Council

DSBA SUBMISSION TO THE LEGAL SERVICES REGULATORY AUTHORITY THE FINANCIAL COST OF DELAYED LITIGATION


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Autumn 2018 dsba.ie

From the Editor

W

elcome to the autumn edition of the Parchment where we especially feature articles with relevance to litigation and recent developments. It is with great distinction that this edition of the Parchment includes litigation articles from colleagues in some of the leading law firms in the city including A Goodbody McCann Fit gerald Arthur Cox Mason Hayes and Curran yrneWallace, Hayes, AMOSS and others. ack O’ rien of O’ rien ynam examines the second and final report of the Personal Injuries Commission which was recently published. The ten recommendations made by the Commission will go to Government and new legislation may be forthcoming thereafter. Much has been made in the media and elsewhere about the level of damages plaintiffs receive here in Ireland compared to other jurisdictions. The insurance industry believes such awards are too generous to plaintiffs. They would say that. Practitioners know at firsthand what their clients go through in terms of pain and suffering and how

their lives are affected following an accident, injury or catastrophic incident. Consultants and doctors test that to ensure veracity. o solicitor wants a bogus claim. These should be stamped out and plaintiff culprits seriously reprimanded with sanctions. Genuine cases should not be castigated or rebuked and unfortunately such is the scaremongering in the past year, that this is what’s happening. obert yan shortly steps down as President of the S A and Greg yan becomes the new President. I would like to wish obert every success for the future and congratulate him on a great year at the helm of this great association.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2017/2018

ROBERT RYAN DSBA President

GREG RYAN DSBA Vice President

DIEGO GALLAGHER Honorary Secretary Chair of Family Law Comm.

TONY O’SULLIVAN Programmes Director

JOSEPH O’MALLEY Treasurer

SUSAN MARTIN co-Chair of IP & Technology Committee

LAURA HORAN Chair of Younger Members’ Committee

NIALL CAWLEY Chair of Practice Management Committee

PAUL RYAN Chair of Commercial Law Committee

MATTHEW KENNY

JOAN DORAN Chair of Mental Health & Capacity Committee

KILLIAN O’REILLY Chair of the Litigation Committee

RONAN McLOUGHLIN Chair of the Property Committee

CIARA O’KENNEDY Chair of the Employment Law Committee

GERARD O’CONNELL Chair of the Parchment Committee

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

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

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

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

EDITOR John Geary PARCHMENT COMMITTEE Julie Doyle Stuart Gilhooly Laura Horan Áine Hynes Killian Morris Kevin O’Higgins Joe O’Malley Robert Ryan 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

WHEN YOU HAVE FINISHED WITH THIS MAGAZINE PLEASE RECYCLE IT.

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Autumn 2018

Contents 6

20 minutes with.... Carthage Conlon Julie Doyle meets the Athlone solicitor who’s now a partner at O’Mara Geraghty McCourt

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New Personal Injuries Landscape awaits?

12

The Fine Line between Workplace Bullying and Negligence

Jack O’Brien assesses the recommendations of the Personal Injuries Commission’s final report

DSBA Submissions to the Legal Services Regulatory Authority DSBA Submission to LSRA on their Section 6 review

18

Gross Negligence Manslaughter in the Healthcare Sector Joanelle O’Cleirigh examines gross negligence manslaughter

20

Working Long Hours can get Employers in Trouble

24

Striking the Balance: Interlocutory Relief in Judicial Review

Loughlin Deegan reviews the recent Labour Court decision in the Kepak v Gráinne O’Hara case

Sean Barton and Ciarán Donohue assess the case of Fitzpatrick v Minister for Agriculture, Food and the Marine

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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20 MINUTES WITH... CARTHAGE CONLON

Ailbhe Dennehy reports on a recent Court of Appeal decision which has helped clarify the law

14

From early in my career dealing with difficult cases, it was always important to ensure that a work/life balance was maintained

06


Autumn 2018 dsba.ie

Contents

REGULAR FEATURES 01 04 48 52 56

Editor’s Note President’s Message In Practice DSBA News Photocall

10 26

Do Litigation Costs Always Follow the Event? Matthew Austin and Ruth Prendeville analyse the decision in O’Reilly & Anor v Neville & Ors

28

New Guidelines for Section 47 Assessments Keith Walsh summarises recently introduced new guidelines

30

The Fundamentals of Marketing your Practice

32

Commercial Leases – I Want to Break Free

34

When €15,000 is Worth more than €20,000 in Unfair Dismissal cases?

Flor McCarthy says that solicitors need to exceed their clients’ expectations every time

32

Adam Hogg takes a closer look at early termination by the tenant or in some cases, the landlord

Richard Grogan explains that when dealing with unfair dismissal cases - this is the reality

36

The EU Copyright Directive

38

Recent Court Decisions are welcome for Owners and Occupiers

Cian McElhone reviews the directive intended to harmonise European Union copyright law

Margaret Cordial notes that the courts have held in a number of recent decisions that occupiers are entitled to presume that visitors to their property will take reasonable care for their own safety

38 the Parchment 3


Message from the President

Autumn, the end of our DSBA Year

A

s the litigators amongst our readership know well a new legal term, Michaelmas, has now begun marking this autumnal period and the resumption of the trials and tribulations before our courts. For us in the DSBA autumn marks the end of our Council year - and thus by the time you read this, the Presidential chain of office will have been handed over to my successor. My last address to you was in une, and since there’s been plenty to report on much of it covered in this edition of the Parchment. Our CP programme ran to end uly and resumed in October. My thanks to all our speakers as well as our Committee Chairs for their hard work in that regard. Our S A egal Services egulation taskforce, led by yours truly, in uly prepared and submitted to the Legal Services egulatory Authority a detailed submission in response to its consultation on the existing statutory framework governing the provision of legal services. Our submission, the text of which is set out in this edition, suggested some improvements to the existing framework in the interests of a better and fairer balance as to the relationship between solicitor and client. Our taskforce also continued with its bi-monthly meetings with the Authority. We are pleased to report that one of the main features of the 2015 Act of interest to solicitors, namely limited liability partnerships, is now very likely to (finally) go live early in 2019. Our Conveyancing Committee, led by onan Mc oughlin, in September prepared and submitted to the aw Society a detailed submission in response to its consultation on the new form of sale contract which as readers may be aware proposes a fundamental shift to most legal work being undertaken pre-contract. Our S A annual conference took place in enice in late September, hosted by yours truly, with over 110 delegates and guests attending what was a most enjoyable and unique event for all concerned. We thank our speakers at the Friday business session of the conference, namely Michael Mulcahy, SC, iall Cawley and oan oran. We also thank aw Society President Michael uinlan

4 the Parchment

for his address on behalf of the guests at the Saturday closing dinner, and Colette O’Malley for her expert support of our organisation of the annual conference. The second of two golf outings this year was held by the S A Golf Society in August, being the annual Captain’s Pri e in Hermitage Golf Club. Congratulations to Shea Cullen who won the Captain’s Pri e. Our thanks to Eamonn Shannon, Hugh O’ eill and Fiona uffy for organising the final golf outing of the year. The annual S A lunch for our golden oldies’ members or former members of the S A who qualified as solicitors 50 years ago took place in the S in October. We were delighted to have such a large number attend this year, and that all were in good cheer. Our thanks to ohn Spanner O’Malley and Maura Smith for organising the event. In uly we were delighted to learn that two longstanding members and supporters of the DSBA had been appointed as judges namely Michael uinn to the High Court, and ames McCourt (past President of the S A and Chair of the S A ursary Trust Fund) to the Circuit Court. Congratulations and best wishes to both of them for their career on the bench.

We were however, dismayed to learn in uly that the public restaurant in the Four Courts was to be closed and replaced by offices for use by the Courts Services. Our dismay was the more pronounced by the absence of any consultation on the closure by the Courts Service or the Office of Public Works - not even with the Court Users Group. Our subsequent lobbying to seek at least some time for consideration of the closure was unfortunately to no avail. Finally, thanks to increased support from our members (particularly large law firms) with increased subscription payments, the S A’s finances have remained stable and in profit thus enabling the S A to continue the replenishment (after the economic crash) of our financial reserves. In conclusion it has been an honour and privilege to serve you as S A President. It would not have been possible without the goodwill and support of the S A Council and head office led by our CEO Maura Smith. Thank you all. May I also wish my successor Greg yan all the best as President for the coming year. Robert Ryan, DSBA President


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Autumn 2018 dsba.ie Julie Doyle is head of Legal Services at Cluid Housing. She is a member of the Parchment committee.

20 Minutes With...

The Rise of Carthage After 20 years working at ME Hanahoe Solicitors, Carthage Conlon recently left to join the firm of O’Mara Geraghty McCourt. ulie oyle caught up with him and they talked for 20 minutes

Tell us about your background and where you grew up? I grew up in Glasson, just outside Athlone in County Westmeath, attending the local national school and later the Marist College in Athlone. It was very much a rural area then, but has developed considerably since. What drove you to choose a career in law? I was always interested in subjects that gravitated towards history and politics and so law always felt a more natural fit for me. When did you qualify and where did you commence your career? I left UC in 1997 and a few months later started my training in ME Hanahoe Solicitors where I was fortunate enough to secure a training contract which was difficult to come by at that time. I qualified in 2001 and was retained by ME Hanahoe Solicitors where I stayed until August of this year. Was it a difficult decision to leave your previous firm after such a long time? It was a very difficult decision to leave M E Hanahoe Solicitors. I had very strong bonds with Tony, Ernie and Terence, as well as Margaret ice and obert Purcell. I had worked together with them for 20 years, through good times and bad and remain indebted to each of them for their assistance and guidance to me, as well as their continued friendship. What is your most memorable moment in practice? The most memorable moments from practice that perhaps gave me the greatest satisfaction were personal injury actions for clients who had suffered catastrophic injuries, one at birth and the other in an accident. oth were totally reliant on the outcome of the litigation, and both had very successful outcomes, which would

provide a much more positive future for them. Another memorable moment occurred when I realised, quite by chance, that fire safety regulations had been amended after a particularly tragic case I was involved in it was one occasion where litigation effected change, not something that often occurs. Who has had the most influence on your career to date and why? Margaret ice, Tony Hanahoe and Ernie Hanahoe as they would have moulded and shaped my approach to issues and situations that arise in practice, and who impressed on me the need to remain composed and meet issues in a calm and logical fashion. They also imbued me with the confidence to deal with litigation files and clients at any early stage in my career, supporting and mentoring me. At the outset of your career you represented victims of sexual and physical abuse at State institutions before the Residential Redress Board. Did that experience shape your work in public interest law? It very much in uenced my approach to people that have presented with problems. Some of the statements which I had to deal with were quite harrowing and it has led me to a better understanding of people, and that there can be underlying reasons for a client’s problem which are not always readily apparent. It also made me realise, quite early in my career, how the State, large institutions and Government departments operate the inequities that exist, and the need for co-operation between colleagues when challenging such organisations. It taught me also how to think strategically and look at other avenues that may exist in order to achieve results or obtain information. You have forged a career in recent years in defending white collar crime cases, most notably representing one of the

defendants in the Anglo trial charged with taking part in an alleged conspiracy to mislead the bank’s investors about the true value of deposit books. Can you tell us a little about dealing with such a high profile and lengthy case? The series of banking cases which I was involved in were a tremendous experience and gave me huge insight into the interaction between regulatory authorities and regulated bodies, and the entire financial crisis. It was a truly remarkable and historic period for Ireland, and in particular the “section 60” trial in many ways encapsulated Ireland of the noughties. At that time because of the intensity of the work, particularly with the section 60 trial, I probably didn’t fully realise quite the level of intensity. It was only after the case concluded that I had an appreciation of the level of intensity and scrutiny the legal teams were under. The main thing in lengthy trials is to ensure a routine is established, so your other clients and colleagues know your availability or otherwise, and that you allow time to maintain a life outside of the case. It is vital that you maintain some form of a work/life balance. ou also need to understand and decide how you are going to approach the work and what are the requirements to deal with the level of work. In such cases the use of technology is vital and I would be a strong advocate of the use of technology in court proceedings. It is also important to have the support of colleagues in your practice and I had that. I was also fortunate to work with counsel with whom I have a very good working relationship, Patrick Gageby, SC Michael O’Higgins, SC and Ted Harding, . There is a heightened awareness of the Parchment 7


Photography: Bryan Meade

Another memorable moment occurred when I realised, quite by chance, that fire safety regulations had been amended after a particularly tragic case I was involved in the effects that white collar crime can have on society and it is consequently becoming an area of increasing importance. In your opinion what are the difficulties that persist in investigating corporate fraud? Does the Criminal Justice (Corruption Offences) Act 2018 go far enough? The main difficulty in investigating corporate fraud is primarily a resource issue for the State agencies. The sheer volume of documents in such investigations can be enormous, which requires significant resources to process and review. The 2018 Act does assist a prosecution authority in terms of presentation of certain cases as the Act defines offences, and develops and expands the “presumption of corruption”, and thereby extends the nature of offences where the burden of proof shifts to the defendant. However, that does not subtract from the work required by the investigating body in the first instance. The notable development in the Act of the imposition of corporate liability on a

8 the Parchment

company for the actions of its directors/ managers/employees is particularly interesting as is the defence available that all reasonable steps were taken and all due diligence exercised to avoid the offence being committed. It will be interesting to see how this will be interpreted and what the applicable standard is. It also creates a potential situation where the interests of a company diverge from an individual director/manager/officer and it will certainly be interesting to see how this area develops. There s also the potential for imposition of criminal liability for a director/ manager/officer if the company is guilty of an offence under the Act where there was connivance, consent or wilful neglect on the part of such person. These developments serve to underline the importance of independent legal advice if any such situation arises. The Criminal Justice Bill 2018 was published earlier this year dealing with money laundering and terrorist financing. Do you think the bar is being set high enough for Irish companies to combat corruption? I think it is better that there is a standardised regime throughout the EU and so Ireland has neither a more or less onerous regime than other EU states. This bill when enacted and taken with the other measures that have been and are being introduced, ensure that there is a wide range of measures for combatting corruption and whitecollar crime. There are now a wide range of statutory offences as well as common law offences, available to the PP, so there s plenty of scope to prosecute wrongdoing. The real issue is the detection of wrongdoing in the first place, and the resources to properly investigate alleged wrongdoing. You most recently represented a client at the Protected Disclosures Tribunal. The Protected Disclosures Act 2014 appears to have sufficient teeth where an employee's protected disclosure is linked to that dismissal. What should employers be mindful of when dismissing someone who has made such a disclosure? The employer must ensure that their processes and procedures are correct, and that there is a genuine, ona e reason to dismiss the employee which is entirely unrelated to the protected disclosure as made, so as to ensure the employee is not being penalised for making the protected disclosure. If possible, an external decision maker should be involved, in terms of

investigation, disciplinary sanction or appeal. Allied to this there must be a full and rigorous investigation of the protected disclosure. The employer must be mindful that the consequences of being unable to prove that the dismissal is unconnected to the making of the protected disclosure are very significant a potential award of up to five years remuneration as compensation. There is also the option for the employee to seek injunctive relief which if successful, would mean that the employer has to pay the employee from the date of dismissal to the date of the hearing of the unfair dismissals claim. Employers must tread very carefully. In dealing with such high-profile cases, how you do manage to achieve a work/ life balance (particularly when the fates of Westmeath football are such that you don’t get many days out!)? I have been fortunate to have had the support of colleagues in Hanahoe’s and now in O’Mara Geraghty McCourt. From early in my career dealing with difficult cases, it was always important to ensure that a work/life balance was maintained. Westmeath football is certainly in the doldrums at present, thanks for reminding me, and regrettably it doesn’t seem like that will change anytime soon. Through my son I have become a vicarious ubs supporter. I try to get exercise daily, mainly cycling to and from work, and I am involved in coaching at underage with a Fianna which I find very rewarding there is no quicker way to forget the week s work than trying to coach under 11 boys on Friday evenings. I also try to get out most Monday nights to play 7 aside GAA. A few years ago I also joined the board of Coolmine Therapeutic Community and to see some of the work it does, gives you an appreciation of how difficult life is for many less fortunate. What is your vision for your new role in O’Mara Geraghty McCourt? I have just joined O’Mara Geraghty McCourt after the appointment of ames McCourt to the Circuit Court. I hope that I will bring added value to the firm where along with my fellow co-partners can build on the practice and reputation of Ciaran O’Mara and ames McCourt, and in particular for me to develop the regulatory law aspect of the practice. Finally, what advice would you give someone thinking of becoming a solicitor? Consider your strengths in terms of your character and personality and what area of law might be best suited for you - there are so many different areas of law, every solicitor should be able to find an area that suits them. Always remain composed as there is no problem that isn’t capable of being solved. P


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New Personal Injuries Landscape awaits? The second and final report of the Personal Injuries Commission (PIC) was published recently on 18th September 2018. ack O’ rien assesses the most far reaching of the PIC recommendations which relate to judicial guidelines, and in particular, the establishment of a Judicial Council which aims to provide judicial guidelines on personal injury matters before the Circuit and High Courts Background The ‘Cost of Insurance Working Group’ report recommended the establishment of the Personal Injuries Commission in its anuary 2017 publication. That Working Group concluded as follows: • Awards for personal injury claims represent a significant component of an insurance company’s pricing model; • Soft tissue claims represent a significant component of overall personal injury claims; • Severity in soft tissue claims can be difficult to diagnose; • Approaches that link diagnosis, treatment, prognosis and awards of damages should be examined. The PIC was required to investigate the above issues further. In the intervening period since anuary 2017 the PIC has delivered two reports, having engaged with various stakeholders including Ibec, the aw Society of Ireland and the insurance industry. The time frame for the publication of both reports is commendable. The first report was published on 7th ecember 2017, setting out four recommendations as follows: • Standardising the examination and reporting of soft tissue injuries; • Training and accreditation of medical professionals who complete such reports; • Connecting the Book of Quantum to the newly standardised examination and reporting structures; • Relevant injury data should be collated and published by appropriate bodies. 10 the Parchment

Final Report Published 18th September 2018 The final report of the PIC was published on 18th September 2018, although much comment had been provided in the media from the date of delivery to the relevant minister in uly 2018. The final report has been broadly welcomed by Ibec, the insurance industry and many legal practitioners. The report makes ten recommendations as follows: 1. Establishment of udicial Council. 2. udicial Council bill to be progressed urgently. 3. Cap on amount of general damages. 4. Early treatment as part of standardised plan. 5. o medical report/no offer. 6. Prompt notification from plaintiffs. 7. Establishment of Irish Garda Fraud Investigation ureau. 8. Insurers set up anti-fraud measures. 9. Adoption of internationally recognised injury coding system. 10. esearch studies into prevention and management of soft tissue injuries. The report finds that minor claims are overpriced and out of sync in comparison to other countries. The report did not look at the historical background as to why minor claims can be over four times the level in the UK. There are any reasons for same, notably changes in jurisdiction, advent of the euro, economic well-being and insurers proffering nuisance type settlements. Three of the report recommendations deal with the importance of a Judicial Council and judicial


Autumn 2018 dsba.ie Jack O’Brien is co-founder and partner with O’Brien Lynam Solicitors

guidelines in respect of controlling the level of general damages. In two other recommendations plaintiffs are noted to be entitled to “cash not care” and insurers ought not to take advantage of injured parties in the absence of an appropriate medical report. An internationally recognised coding system is recommended, and the insurance industry ought to establish a national medical research study into the prevention and management of soft tissue injuries to other recommendations. The high level of awards in soft tissue injuries is clearly an incentive for some to engage in fraudulent and exaggerated claims. One recommendation requires the plaintiffs to give a notification regarding accident circumstances promptly. There’s a further recommendation that a fraud investigation bureau be established as part of an Garda Síochána which has been successfully commissioned in the UK. The report recommends insurers step up anti-fraud activity and be prepared to innovate through appropriate personnel and technological means.

Judicial Council/New Judicial Guidelines In recommending that a Judicial Council be established by the Minister for ustice and Equality, the Commission believes that guidelines ought to be provided regarding appropriate general damages for various types of personal injuries. The report recommends that such a Judicial Council would require to take into account the jurisprudence of the Court of Appeal and the results of the Commission benchmarking exercise and the whiplash-associated disorder scale which was established by the Quebec taskforce. The Commission recommends the review of guidelines at regular intervals (every three years) and an entire judicial recalibration of the existing Book of uantum guidelines. The Commission recognises that amendments may be required to the PIA Act 2003 and the Civil

Litigation

iability and Courts Act 2004, ensuring that judges have regard to the guidelines produced by the Judicial Council, as opposed to the current situation where High Court judges may take the Book of Quantum into account. The report further recommends that the Judicial Council bill ought to be progressed through the Houses of the Oireachtas as a matter of urgency and in the event that it is not, the Executive should establish a formal framework in the interim with a view to completing guidelines in advance of the renewed deadlines for the next updated Book of uantum. The Commission notes that the aw eform Commission has been required to undertake a detailed analysis of the possibility of developing legislation to delimit or cap damages. There is no doubt that the report is far reaching and recognises the cost to business of overpriced minor claims. While capping damages will be constitutionally challenging, there is no doubting the impact that the level and high cost of claims has on business aside from the incentive for fraud and exaggeration to occur. Commission chairman icholas Kearns recognised that genuine plaintiffs require adequate compensation, but the report compiled by a wide variety of stakeholders also recognised the difficulties created by the high level of low value claims where plaintiffs appear to get best value at little risk. The recommendations, particularly regarding the udicial Council, force the matter back towards the Oireachtas and Executive to deal with. The report will only be as good as the implementation of same. It must be recognised that both reports, whether one agrees with them or not, were compiled in a timely manner from anuary 2017 to uly 2018. It is noted that the initial report called for a standardised medical assessment to be adopted by mid-2018 but at the time of writing, we understand this was still being worked on. P

In recommending that a Judicial Council be established by the Minister for Justice and Equality, the Commission believes that guidelines ought to be provided regarding appropriate general damages for various types of personal injuries

the Parchment 11


The Fine Line between Workplace Bullying and Negligence Ailbhe Dennehy reports on a recent Court of Appeal decision which has helped clarify the law

L

ast month the Court of Appeal weighed in on a High Court decision that appeared to concern a (somewhat unusual) situation of “upwards bullying” i.e. where a supervisor had allegedly been bullied by a number of subordinate employees. The High Court found the conduct of the subordinates did not meet the high threshold required to constitute “legal” bullying. However, the Court of Appeal concluded that the case was not one of workplace bullying, but rather, one of negligence. The court found the employer had breached its duty of care to the supervisor when it failed to take action to prevent the recurrence of the aggressive behaviour of her subordinates. McCarthy v ISS Ireland Ltd & HSE will examine what this means for employers.

The Facts Ms McCarthy was employed by ISS Facility Services as a cleaning supervisor in a imerick hospital. She claimed that, over the course of two years, she experienced five separate incidents where other cleaning staff, whom she supervised, acted in an “aggressi e threatening an a si e manner to ar s her” causing her “se ere stress an an iet h miliation pain an s ering” such that she experienced significant stress and ultimately resigned from her job. Ms McCarthy reported these incidents of threatening and abusive behaviour, ranging from one male employee pinning her to a wall and another employee “shouting and roaring” at her in public, to her employer. However, she alleged that “no particular action was taken to prevent a recurrence” which resulted in a culture of tolerance for such behaviour within the workplace. Ms McCarthy asserted that the inaction, which resulted in Ms McCarthy experiencing “ ear stress an an iet ” constituted negligence. 12 the Parchment

The High Court Decision The High Court regarded Ms McCarthy’s personal injuries claim as one of bullying in the workplace. In particular the court identified three “markers of bullying”: 1. Repetition: “something happening on a ail asis or eekl asis that a person has to en re”; 2. Duration: of the particular treatment to which the person is subjected; and 3. Indications of escalation of the activity. earing these “markers” in mind, the High Court was critical of the fact that each of the five incidents was perpetrated by a different employee and there were “temporal gaps et een each s ch inci ent”. The trial judge adopted the view that “or inar h man li e is ll o psets large an small hich on t necessaril gi e rise to legal lia ilit ” and queried what steps Ms McCarthy’s employer could reasonably have taken in respect of the five incidents. Ultimately the trial judge concluded that “at the end o the a this as an n ort nate episo e” but the five incidents were not, in the judge’s view, of the nature that would “in the or inar co rse ca se a person to s er as the plainti s c arth claims to ha e s ere ”. The judge held that the court “co l not possi l impose some sort o legal lia ilit to pa the h ge s ms o amages an compensation eing claime on ehal o the plainti in this case”. The case was dismissed.

The Court of Appeal Decision On appeal Ms McCarthy claimed that the trial judge had erred in characterising her claims as one of “ orkplace ll ing”. Ms McCarthy argued that she never presented her case as one of workplace bullying, but rather one of negligence on the following two grounds: 1. Alleged individual tortious acts by employees committed in the course of their employment which


Autumn 2018 dsba.ie Ailbhe Dennehy is a senior associate in the employment team at A&L Goodbody. She is a member of the DSBA Employment Law Committee

Employment Litigation

caused her injury and for which the employer was icario sl lia le; and 2. Alleged negligence by the employer by failing to pro i e a sa e place o ork by taking no reasonable or effective action to prevent recurrence of the behaviour and thereby “negligentl permitting” an atmosphere to exist in the workplace whereby cleaning staff felt free to “speak an act aggressi el an a si el ” towards Ms McCarthy “ itho t ear o sanction”.

Vicarious Liability While in the case of a workplace bullying claim there is an onus on the plaintiff to demonstrate that the injury to her health was reasonably foreseeable by the employer in the circumstances, no such obligation arises in the context of determining an employer’s vicarious liability for the individual tortious acts of its employees. However, the Court of Appeal, while acknowledging that each incident amounted to a “technical assa lt”, did not find that the acts were committed in the course of the perpetrators’ employment. The court went on to find that the “concept o icario s lia ilit ” would be stretched “ e on its inten e limit i an emplo er as to e o n icario sl lia le or e er in i i al aggressi e er al o t rst one emplo ee to another ring the co rse o a a s ork e en here that o t rst has ca se istress”. Ms McCarthy’s first ground of appeal was therefore dismissed.

The court concluded that where Ms McCarthy had made complaints to her employer about hostility, the employer owed a duty of care to take some reasonable steps to address what occurred to minimise the chance of recurrence

Failure to Provide Safe Place of Work In relation to Ms McCarthy’s second ground of appeal, the court confirmed that an employer has both a common law and statutory duty to ensure a safe place of work. The court noted that an employer must “take all reasona le steps to protect the emplo ee” where there is a “ oreseea le risk” so that no injury is caused. The court noted that Ms McCarthy, as a supervisor had authority over the employees in question. In the court’s view this role could “potentiall ring her into con ict ith those n er her s per ision” such that it was reasonable for her employer to have “a partic lar t o care” towards her as a supervisor and to “anticipate that s ch con ict might occ r”. An employer should have procedures in place to minimise such con ict and to deal with it when it occurs so as to “pre ent as ar as reasona l possi le an rec rrence”. The court concluded that “nothing as one to protect the plainti ho as in a s per isor role hich role its er nat re ma lea to con rontation ith those ho are eing s per ise ”. Justice Peart acknowledged that the extent and nature of the duty of care varies depending on the nature of the employee’s employment. He confirmed that the duty of care must take account of the employee’s job and relationship between her and other employees such that “one cannot o erlook the act that the plainti s o as as s per isor o cleaning sta in a s hospital” which required a “very high stan ar o cleanliness”. In such circumstances the court concluded that where Ms McCarthy had made complaints to her employer about hostility, the

employer owed a duty of care to take some reasonable steps to address what occurred to minimise the chance of recurrence. The court found that the employer was “lia le in negligence or the in ries loss an amage that are attri ta le” to its negligence by: (i) not having policies and procedures in place to deal with issues of this nature; and (ii) failing to provide Ms McCarthy with a safe place of work. The Court of Appeal found that the trial judge had erred by failing to deal with the alleged failure of the employer to provide a safe place of work. The court remitted the case to the High Court for a determination of the issues of causation and damages.

Conclusion While employers in Ireland will be acutely aware of recent workplace bullying decisions, not least because of the significant levels of compensation, the concept of liability for negligence in such circumstances will give further pause for thought. The Court of Appeal’s decision serves as a warning to employers that a failure to reach the legal definition of workplace bullying may not absolve an employer from liability. earing in mind the common law and statutory duty to ensure a safe place of work, employers should take prompt and effective action when on notice of any employee behaviour that may breach that duty. P the Parchment 13


DSBA Submission to Legal Services Regulatory Authority The S A S A committee, chaired by S A President obert yan have made a submission to the S A on its Section 6 review. It argues for a better balance to the governing legal framework for solicitors

Background The ublin Solicitors’ ar Association S A’ which was established in 1935 is the largest independent association of solicitors in Ireland, with a membership of over 3,000 practitioners. Our membership includes solicitors’ firms of all si es from the sole practitioner to the largest firms in Ireland. The DSBA is solely a representative and educational body for solicitors, and does not have any regulatory function in relation to solicitors in Ireland. In its representative capacity the DSBA has been extensively involved over the last seven years in the review of the egal Services egulation ill (as published in 2011) through to its enactment in late 2015 (including making various submissions to the epartment of ustice), and since then has engaged directly with the new egal Services egulatory Authority “Authority” as it rolls out the new legislation. The S A is thus uniquely placed, and with an independent voice, to provide a perspective on the needs of solicitors in the State as legal practitioners with regard to the governing legal and regulatory framework provided for under the Solicitors Acts 1954 to 2015 “Solicitors Acts” , as including most recently the egal Services egulation Act 2015 “2015 Act” . Under Section 6 of the 2015 Act, the Authority is tasked with bringing forward such “recommendations (i an ) or amen ments to this Act the olicitors Acts 195 to 2015 or an instr ment ma e n er those Acts as the A thorit consi ers appropriate arising rom its n ings an concl sions ” 14 the Parchment

This submission focuses on a small number of recommendations we wish to put before the Authority for its consideration in that regard. Our recommendations envisage a number of suggested amendments to the existing governing legal and regulatory framework for solicitors in the interests of better balancing the relationship as between solicitors as providers, and the public as recipients, of legal services. We do not in this submission address the existing regulatory and structural framework governing the provision of legal education in the State to prospective and practising solicitors, and whether any changes to that framework would necessitate any amendments to the Solicitors Acts noting that the Authority is presently conducting a review of the provision of legal education in the State, as to which our submission to the Authority in une 2018 refers.

A. Complaints Double Jeopardy The existing legal and regulatory framework governing practice-related complaints against solicitors allows for the subject matter of such complaints to be brought before the aw Society (through its egulation of Practice Committee and the Solicitors isciplinary Tribunal) and now (when activated under the 2015 Act) before the Authority each herein a “regulatory authority” but also, and depending on the subject matter of the complaint, before the courts whether before or after the complaint is filed with the regulatory authority.


Autumn 2018 dsba.ie

News

Thus, whilst the aw Society may have a policy not to deal with a complaint which, or the substance of which, is before the courts, that does not assist where a complaint is disposed of by the Law Society in favour of the solicitor yet the very same complainant then subsequently issues legal proceedings before the courts in respect of (in substance) the same subject matter. The solicitor may thus be exposed to double jeopardy’ in relation to the subject matter of the complaint. To take an example, a complaint as to an inadequate standard’ (as referred to in Section 50 of the 2015 Act) relating to the provision of a legal service is or can, in substance, be much the same as an allegation of negligence. The double jeopardy is caused by having dual forums as may hear and decide upon (in substance) the same complaint, and is compounded by the fact that even if the solicitor is successful in defending the complaint before a regulatory authority, all costs and expenses incurred by the solicitor in doing so are for his/her own account and are not recoverable from the complainant or from any standard professional indemnity insurance “PII” policy available to solicitors. To take a comparative example which operates (on a statutory basis) to prevent double jeopardy, where an employee wishes to pursue a dismissal complaint against his/her employer, the employee is in effect required to choose between making a complaint as to unfair’ dismissal through the Workplace elations Commission or alternatively, to issue a wrongful dismissal’ claim before the courts (per section 15 of the Unfair ismissals Act 1977 as amended) that is one or other of the available reliefs, but not both.

This requirement is evidently designed to provide a necessary balance in the relationship between the employer and the employee, and thus is not viewed as contrary to the public interest. We would recommend an amendment to the 2015 Act (such as by inserting one or more subsections at the end of existing Section 50) which provides that a complainant is prohibited from bringing any claim against a solicitor before the courts in respect of (and to the extent) the subject matter of the claim was in substance included in a complaint (being one as to misconduct’) made before a regulatory authority which was disposed of in favour of the solicitor and vice versa if the claim is first made before the courts. The foregoing is without prejudice to the hearing of a complaint on appeal in the courts in respect of any decision of a regulatory authority whether at the instance of the complainant, the regulatory authority or the solicitor concerned. It would also be without prejudice to the power of the court or the regulatory authority to determine whether the substance requirement is or is not satisfied in the circumstances.

The solicitor may thus be exposed to double jeopardy’ in relation to the subject matter of the complaint

Vexatious or Frivolous Complaints The aw Society in its capacity as a regulatory authority adopts its own modus operandi for dealing with complaints against solicitors. This includes streamlining of complaints received by the aw Society such that if on initial (internal) evaluation of the complaint, it is regarded that the complaint is frivolous or vexatious or abusive or otherwise without any evident merit, then the complaint may be disposed of without any further action and the the Parchment 15


To amend the 2015 Act to provide that a complainant is prohibited from bringing any claim against a solicitor before the courts in respect of (and to the extent) the subject matter of the claim was in substance included in a complaint (being one as to misconduct’) made before a regulatory authority which was disposed of in favour of the solicitor and vice versa if the claim is first made before the courts

16 the Parchment

complainant advised accordingly. The aw Society in such circumstances does not however (and as a matter of policy it appears), notify the solicitor concerned of the receipt of the complaint or of the disposal of the complaint without further action. Thus the solicitor is never made aware (unless told by the complainant) that a complaint against him/her has been submitted to the aw Society and has been disposed of, which in turn prevents that solicitor (if he/she so wishes) to take such steps from a client or practice management perspective to ensure there is no repeat of any such complaint (e.g. by ceasing to act for the complainant). It may be that some solicitors would prefer not to know about the complaint, particularly if notice of the complaint would trigger a corresponding reporting obligation under the PII policy. However, in the interest of fairness and better balance, the solicitor ought to be afforded the entitlement to be made aware of the complaint (and its disposal) upon request by him/her to the aw Society. Accordingly we would recommend an amendment to the 2015 Act (such as by inserting one or more subsections at the end of existing Section 50) which provides that a solicitor shall be entitled upon request to a regulatory authority to be advised whether such authority has received and disposed of (without reference to the solicitor) any third party complaint against such solicitor, and if so to provide such particulars of the complainant and complaint as the solicitor may reasonably request.

B. Levy We understand that the Authority has been considering how to apply Part 7 of the 2015 Act in relation to the funding of the Authority through the levy on professional bodies (and others) referred to therein and also whether Part 7 requires to be amended in any respect. We await therefore, and hold counsel on, the implementation of or amendments required to the existing levy framework provided for in Part 7, pending sight of whatever recommendations may be made by the Authority in that regard. However we would recommend that, in the interest of fairness and better balance, the approved expenses framework provided for in Section 97 be amended so as to distinguish between the day-to-day regulatory costs incurred by the Authority relating to legal practitioners versus what may be called the project costs incurred by the Authority on topics (as so mandated under the 2015 Act and otherwise) relating to the developments in the provision of legal services as may serve better the public interest to include topics such as the levy framework, new business practice models, and legal education. Further, given that there is to continue a dual regulatory structure for solicitors (as between the Authority and the aw Society), and that thus far there has been no indication as to what the levy cost per legal practitioner is likely to be, we would also recommend that consideration be given to amending the 2015 Act so as to require the Authority to ensure that the levy is subject to a proportionality fairness test as against the amount to be paid (each year) by practitioners to the aw Society for their practising certificate.

C. Business Structures As the title to the 2015 Act states, one of the aims of the Act is “to pro i e ne str ct res in hich legal practitioners ma pro i e ser ices together or ith others”. A structure which is provided for by statute in 1994, but not yet activated some 24 years later is the use of a body corporate for the provision of legal services. In that regard we refer to Section 70 of the Solicitors (Amendment) Act, 1994, amending Section 64(1) of the Solicitors Act 1954 - and which vests in the aw Society, with the concurrence of the Minister for ustice Equality (given after consultation with the Minister for usiness, Enterprise and Innovation), the power by regulations made by the aw Society to allow for “incorporate practices” referable to the provision of legal services by solicitors. For whatever reason and despite being evidently the will of the Oireachtas, no such regulations have been brought into being to allow for incorporated practices. Thus, and with a view to promoting the activation of incorporated bodies for use by solicitors as a new optional business structure, we would recommend that Section 70 be amended to provide for the Authority to have a review role in relation to the regulations as and when drafted by the aw Society under Section 70. This would be with a view to achieving a consensus on the form of regulations, and as may then be presented by the aw Society to the Minister for ustice and Equality for consideration.

D. Recommendations 1. (Complaints) To amend the 2015 Act to provide that a complainant is prohibited from bringing any claim against a solicitor before the courts in respect of (and to the extent) the subject matter of the claim was in substance included in a complaint (being one as to misconduct’) made before a regulatory authority which was disposed of in favour of the solicitor and vice versa if the claim is first made before the courts. 2. (Complaints) To amend the 2015 Act so as to provide that a solicitor shall be entitled upon request to a regulatory authority to be advised whether such authority has received and disposed of (without reference to the solicitor) any third party complaint against such solicitor, and if so to provide such particulars of the complainant and complaint as the solicitor may reasonably request. 3. ( evy) To amend the 2015 Act so as to distinguish for levy application purposes between day-to-day regulatory related costs and expenses of the Authority (subject to the levy) versus project costs incurred by the Authority as so mandated under the 2015 Act and otherwise to explore and consider developments relating to the provision of legal services in the State (not subject to the levy). 4. ( evy) To amend the 2015 Act so as to require the Authority to ensure that the levy is subject to a proportionality fairness test as against the amount to be paid (each year) by solicitors to the aw Society for their annual solicitors’ practising certificates. 5. ( usiness Structures) To amend Section 70 of the Solicitors (Amendment) Act, 1994 so as to empower the Authority to review draft regulations as and when prepared by the Law Society under Section 70. P


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Gross Negligence Manslaughter in the Healthcare Sector Can a doctor, hospital or healthcare administrator be charged with the manslaughter of a patient who dies in their care? Joanelle O’Cleirigh says by law, yes. She examines the offence of gross negligence manslaughter

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he principles of gross negligence manslaughter apply equally in healthcare as they do in other instances of gross negligence manslaughter such as fatal road traffic accidents. For gross negligence manslaughter in the medical context, the diagnosis or treatment must have involved a very high degree of negligence involving a risk or likelihood of substantial personal injury to others. Yet as far as we are aware there have been no prosecutions in the healthcare sector for gross negligence manslaughter in Ireland. Compare this with the UK where although the threshold for gross negligence manslaughter is higher than in Ireland, 47 healthcare professionals (including 37 doctors) have been prosecuted since 1994. Twenty-three of these healthcare professionals were convicted, and only four convictions were overturned on appeal. A recent UK Government report on gross negligence manslaughter in the healthcare sector referred to this level of prosecutions as “rare” and the level of convictions as “rarer still”. This raises the question as to why the law on gross negligence manslaughter is not being enforced in Ireland.

Ordinary Medical Negligence A doctor or hospital may be liable in negligence where it is established that they deviated from a generally approved practice in such a way that no doctor of the same specialisation and skill would have followed the same approach if he/she were taking the ordinary care required by a person of his/her skill and qualifications. 18 the Parchment

A doctor will not escape liability if he/she followed a generally approved medical practice if the practice had inherent defects which should have been obvious to anyone giving the issue proper consideration. A negligence action can also be taken against a hospital or healthcare administrator on the basis that the hospital practice or procedure was defective. In such circumstances, the hospital administrator is treated as if he/she had personally carried out the treatment or diagnosis.

Gross Negligence Manslaughter - the Principles • Unsurprisingly, the threshold for gross negligence manslaughter is much higher than that required for a civil claim: • Negligence in this context means a failure to observe such a course of conduct as experience shows to be necessary if the risk of injury to others is to be avoided. • The negligence of the accused must be responsible for the death in question. • Ordinary carelessness falls short of what is required in a case of manslaughter. • The negligence must be of a very high degree and involve, in a high degree, the risk or likelihood of substantial personal injury to others.

The UK Position The test for gross negligence in England requires that the defendant’s negligence must pose a risk of death. This can be contrasted with the position in Ireland,


Autumn 2018 dsba.ie Joanelle O’Cleirigh is a partner in the litigation and dispute resolution group at Arthur Cox

where the risk is that of substantial personal injury. The threshold for gross negligence therefore appears to be lower here than in England. However, UK cases are instructive in terms of the level of negligence and factual situations that might sustain a prosecution or conviction in the healthcare sector in Ireland: » Conviction of an anaesthetist where a ventilator became disconnected during surgery and the patient suffered a heart attack and died. The anaesthetist failed to notice the deceased was getting progressively blue and did not think there was an emergency until the alarm went off. Expert witnesses described the standard of care as abysmal. » Conviction of two doctors involved in the postoperative care of a 31-year-old man who had undergone routine knee surgery. The patient later died of toxic shock syndrome when his wound became infected. He showed classic signs of infection: raised temperature and pulse rate and lowered blood pressure. The doctors failed to appreciate that the patient was seriously ill, and failed to obtain or act upon blood test results. Expert evidence given at trial stated that even a final year medicine student would have been expected to recognise the severity of the illness. » Conviction of a registrar who directed a more junior doctor to inject a drug into the spine of an 18-yearold leukaemia patient when the drug should have been administered intravenously. While there was also a failure by the hospital to maintain a system which would have avoided the mistake, the

Healthcare Litigation

registrar should have checked and ensured that the drug was not administered in the wrong manner. » Conviction of a specialist paediatric registrar who was left the sole person in charge of an emergency department and acute children’s assessment unit, after a six-year old boy admitted with diarrhoea, vomiting and difficulties breathing later developed septic shock and died. The court highlighted a number of errors made by the doctor, including failing to recognise from blood test results that the boy was in shock, failing to properly review a chest x-ray, and mistakenly thinking the boy was under a do-not resuscitate order. The doctor was sentenced to two years in prison, suspended for two years. She was also suspended from practising as a doctor and, on appeal by the General Medical Council, was later struck off. However, the Court of Appeal recently ruled that there should be no presumption of erasure following a conviction for manslaughter by gross negligence, and sent the matter back to the Medical Practitioners Tribunal Service to review the suspension. According to the recent UK Government report, since 2013 the English Crown Prosecution Service (CPS) has been involved in 151 cases of suspected gross negligence manslaughter involving a healthcare professional. Seven of the cases referred to the CPS resulted in a prosecution, leading to four convictions and three acquittals. A further 16 cases are still being considered by the CPS. This contrasts greatly with the position in Ireland and the reasons for this disparity warrant further consideration. P

A doctor will not escape liability if he/ she followed a generally approved medical practice, if the practice had inherent defects which should have been obvious to anyone giving the issue proper consideration the Parchment 19


Employers Caution: Out-of-hours Emails and the 48-hour Working Week Loughlin Deegan reviews the recent decision of the Labour Court in the case of Kepak v Gráinne O’Hara which he says has illustrated the risk for an employer when its employee is found to have worked excessive hours

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edia reports of the case highlighted the fact that the employee was awarded €7,500 because (among other factors) the employee was found to have regularly replied to work-related emails late at night. In this article I look at the ways in which an employer can minimise its risk of being the subject of similar claims in the future. The employee in this case was a business development executive who was contracted to work 40 hours per week. She alleged that her workload was so great that she was often required to work almost 60 hours per week to fulfill her duties. She said that she received emails from her employer before 8am on many days, and that she often continued to receive (and reply to) work-related emails until midnight or even later.

Understanding an Employer’s Obligations The employer in this case understood that the average working week is limited by law to 48 hours. The employer submitted that the employee’s duties did not require her to work for more than 48 hours per week and if she did work long hours, this was a result of her not working efficiently. These defences led the court to consider two important aspects of the Organisation of Working Time Act 1997 (“the Working Time Act”). The first aspect is an employer’s record-keeping obligation. An employer is required to keep records in the prescribed form, demonstrating that the employer is complying with the Working Time Act. Where an employer does not keep records in the prescribed form, then the employer must bear the onus of proving that the employee did not work excessive 20 the Parchment

hours. In this case, the employer did not have sufficient records to prove its innocence and the employee’s assertion that she worked almost 60 hours per week on average was accepted by the court. The second aspect of the Working Time Act the court considered was the fact that it is not a good defence for an employer to say that it did not require the employee to work excessive hours. An employer is in breach of the Working Time Act if it “permits” its employee to work more than an average of 48 hours per week. This has led to two important lessons for employers: 1. Ensure that appropriate records of employees’ working times are maintained: and 2. Actively monitor the time it takes each employee to carry out his or her duties. If an employee is struggling to complete the contracted duties within the contracted number of hours per week, then his or her manager should intervene. The manager should establish the cause of the problem and attempt to resolve it. If an employee is regularly sending emails late at night then that employee’s manager should see those emails as a warning sign. If an employee is working inefficiently then his or her employer should address that inefficiency as a performance issue rather than risk being in breach of the Working Time Act.

Facts to Note about the 48 hour Working Week The prohibition on working more than an average of 48 hours per week is not the only provision that prevents employees from working excessive hours. With some exceptions, employees must also receive rest breaks during their shifts, a daily rest break of 11 hours between shifts and a weekly rest break of 24 hours


Autumn 2018 dsba.ie Loughlin Deegan is a partner in the ByrneWallace employment team. He is chairperson of the Employment and Equality Law Committee of the Law Society of Ireland

(added to one of the 11-hour daily rest breaks) during each week as well. It is lawful for an employer to permit an employee to work more than 48 hours in a particular week provided that the employee’s hours do not exceed 48 hours per week on average. The standard averaging period is four months. That averaging period can be extended to six months or 12 months in certain circumstances. These averaging provisions allow employers and employees to meet unexpected peaks in demand (or predictable seasonal increases in workload) provided that each employee’s average working time is managed appropriately. Rest breaks are not counted as working time for the purposes of the calculation of the average 48-hour working week. However certain types of statutory leave is counted as working time for the purposes of the calculation. Unless a specific exception applies, the prohibition on working more than an average of 48 hours per week is an absolute prohibition. An employee cannot lawfully agree to work excessive hours. Therefore, even if an employee wants to work longer than the permitted number of hours (for example, as a means of earning overtime) the employer will still be in breach of the Working Time Act. There are a number of ways in which an employer can face sanction for permitting an employee to work excessive hours. An employee could take a claim to the Workplace elations Commission (and on appeal to the abour Court), in which case the employee could be awarded up to two years’ remuneration as compensation. The employer could be inspected by the Workplace elations Commission Inspectorate, and be subject to the compliance process under the Workplace Relations Act 2015. If an employee has an

accident at work after having worked excessive hours then his or her employer may have an increased risk of employer’s liability for any injury suffered by the employee. Furthermore, failing to keep the prescribed working time records is also a criminal offence on the part of an employer.

Some Employees are Exempt from the 48-hour Working Week It is interesting that the employer in last week’s case does not appear to have availed of an exemption that is available in the case of some employees. Part II of the Working Time Act does not apply to employees who determine their own working hours. This exemption applies even where the employee who determines his or her own working hours is under an obligation to work during certain minimum periods of time stipulated by his or her employer. However, the scope of this exemption may not be as broad as it first appears. The abour Court has, in previous cases, held that where an employer requires an employee to fulfill so many tasks that the employee’s duties cannot be completed during normal working hours, then the employee is not truly determining his or her own working hours and the exception does not apply.

Employment Law

If an employee has an accident at work after having worked excessive hours then his or her employer may have an increased risk of employer’s liability for any injury suffered by the employee

Key Lessons for Employers The key lessons from this decision of the Labour Court are that: 1. employers should keep appropriate records of employees’ working times and 2. where it is evident that an employee is consistently working excessive hours, that employee’s employer should take prompt action to prevent the employee from continuing to work excessive hours. P the Parchment 21


James Morrin is a senior associate at Mason Hayes & Curran

Litigation

Insolvency Update: Securitised Debts – Who May Sue? Must the legal owner of securitised debt and related security, disclose in proceedings it brings, that it is a bare trustee for the beneficial owner In addition, is that trustee obliged to join the beneficial owner as a party to those proceedings ames Morrin answers the questions

The structure of litigation brought by the legal owner of these loans does not need to change from the approach which has already been adopted

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hese were the key questions that were considered by the High Court in an appeal from the Circuit Court in the recent case of epper inance orporation ( relan ) A Jenkins & anor (2018 IEHC485). The court rejected yet another novel, procedural challenge to the enforcement of loans, many of which have been subject to securitisation or loan sales. Therefore, the structure of litigation brought by the legal owner of these loans does not need to change from the approach which has already been adopted in very many cases involving non-performing loan sales. This decision is a welcome development for current and prospective purchasers of debt and security in the Irish market.

which had the effect that the beneficial interest in the loan and security was held in trust for Windmill Funding td (“Windmill”), leaving the bare legal interest to Pepper. The borrowers submitted that Pepper was obliged to bring the proceedings in such a way as to make it clear that it was doing so as trustee for Windmill, the beneficial owner. Alternatively it would require Windmill to join in the proceedings also. They argued that this requirement was not merely procedural, but an essential prerequisite to Pepper being able to succeed in its claim. Otherwise there was a possibility that the borrowers could be exposed to the risk of being required to pay the same debt twice.

Background

The court decided that Pepper was not obliged either to join Windmill in the proceedings or to declare its status as trustee for Windmill in the proceedings. Pepper was therefore entitled to succeed and the appeal was allowed. The court further decided that the risk of two claims for payment of the debt, one by the trustee and one by the beneficial owner, was more hypothetical than real and that in any event the courts would not make two orders for repayment against a borrower.

The borrowers entered into a loan agreement with, and executed related security in favour of, GE Capital Woodchester Home oans td, which later became known as Pepper Finance Corporation (Ireland) td (“Pepper”). Pepper subsequently securitised the loan

Decision

Comment If notice of an equitable assignment of a loan has not been given to a borrower and the assignor continues to have legal title to the loan, it is now beyond doubt that the assignor may bring proceedings in its own name and on its own behalf without joining the beneficial owner. The assignor trustee does not have to make it clear that it is issuing proceedings as bare trustee on behalf of the beneficial owner. The decision leaves open the position where a borrower has been given notice of an equitable assignment. In these circumstances, it may be appropriate to note the assignment and confirm that the equitable assignee will be bound by any judgment for or against the assignor. P 22 the Parchment


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Striking the Balance: Interlocutory Relief in Judicial Review The High Court has recently clarified the criteria for the granting of interlocutory relief in judicial review applications. Sean arton and Ciar n onohue assess the case of Fitzpatrick v Minister for Agric lt re oo an the arine (201 77) which makes it clear that the grant of such relief involves considerations which do not feature in ordinary injunction applications

Background In it patrick inister or Agric lt re oo an the arine, the applicants sought various interlocutory injunctions pending trial. oth applicants were engaged in the fishing of nephrops’, a species of prawn, off Ireland’s west coast. The respondent Minister responsible for marine use closed a certain area to fishing for nephrops in September 2017, when the Sea Fisheries Protection Authority (“SFPA”) had deemed the 2017 quota of nephrops to be overfished. The applicants disputed the methodology the SFPA used in finding that the relevant waters had been overfished. The Minister and SFPA argued that there was a serious problem of under reporting of nephrops fishing in the area, which required the SFPA to adopt its own methodology. The applicants sought interlocutory orders suspending the Minister’s decision to close fishing of nephrops in the relevant area and requiring the Minister to reopen the relevant area to fishing, pending trial. oth applicants argued that the Minister’s decision would have a catastrophic effect on their businesses, which were in danger of failing, and could lead to the loss of their vessels.

The Okunade Test Ms. ustice aifeartaigh began her consideration of the test to be applied for interlocutory relief in judicial review with the Supreme Court judgment in k na e ( k na e inister or stice alit an a Re orm 2012 9), where Mr. ustice Clarke (as he then was) concluded that while the amp s il ( amp s il inister or n str o 2 19 R ) injunction principles provide a useful starting point, different issues arose in judicial review. amp s il requires that an applicant for 24 the Parchment

an interlocutory injunction should have an arguable case that the balance of convenience must lie in his favour and that an award of damages on the determination of the substantive proceedings will not be an adequate remedy. Mr. ustice Clarke pointed out in k na e that in addition to these criteria the court should have regard in the context of judicial review proceedings “to the public interest in the orderly operation of the particular scheme in which the measure under challenge was made” and to “the risk to the public interest of the specific measure under challenge not being implemented pending the resolution of the proceedings”. Ms. ustice aifeartaigh also cited with approval Mr. ustice Clarke statement that a “strong case” should be demonstrated by an applicant where a mandatory, as opposed to prohibitory, injunction was sought. However, she added that the failure by the applicants to reach the “strong case” threshold would not be fatal to their case, if the withholding of the injunction would carry greater risk of injustice than granting it.

Application to the Facts Ms. ustice aifeartaigh considered that the reliefs sought in this case were best described as mandatory, because they sought to compel the State to carry out its obligations in a very particular and precise way. She therefore proceeded to consider whether the applicants had demonstrated a “strong case”. The judge noted that the respondents had made strong counter-arguments and that the SFPA must be entitled to employ methods to arrive at figures which are as accurate as possible. On this basis, she concluded that the applicants had an arguable, but not a strong, case.


Autumn 2018 dsba.ie Sean Barton is a partner at McCann Fitzgerald Solicitors. He is a specialist in administrative and public law. Ciarán Donohue is a trainee solicitor at McCann Fitzgerald Solicitors

espite the applicants’ failure to demonstrate a strong case, the judge considered whether the greatest risk of injustice lay in granting or refusing to grant the reliefs sought. In this regard, she relied in particular on the statement by Mr. ustice Clarke in k na e regarding the public interest that “the entitlement of those who are given statutory or other power and authority so as to conduct specified types of legally binding decision-making or action-taking is an important part of the structure of a legal order based on the rule of law. ecognising the entitlement of such persons or bodies to carry out their remit without undue interference is an important feature of any balancing exercise” (emphasis added). She noted that these comments were particularly relevant to this case, where the respondents’ legal duties were performed in a complex web of domestic and EU obligations, where the State could be vulnerable to adverse measures if inaccurate figures were submitted to the European Commission. The judge finally considered the adequacy of damages if the applicants succeeded at trial. While the potential damage to the applicants was of a financial nature and was therefore readily compensable by damages, those damages would not be easily recoverable because of the restrictive principles governing the award of damages in judicial review. The judge concluded however, that it should not be assumed that the applicants would not be entitled to damages if they were successful in their judicial review, in particular as their claim involved an alleged breach of rights under EU law.

In light of the applicants’ failure to demonstrate a “strong case”, the compelling public interest in maintaining the operation of the statutory scheme in question, and the fact that damages would adequately compensate the applicants in the substantive action, the judge refused all of the interlocutory reliefs sought.

Conclusion There has been a distinct pro-State shift in the approach to restraining contested exercises of public power since k na e and the cases that followed it. This seems justified as the starting position is that public power is to be exercised independently and (absent perhaps a stateable allegation of mala es), there is no reason to suppose any adverse action is deliberately or recklessly directed at undermining the applicant’s rights or is taken in disregard of them which is often the case in ordinary party and party injunction applications. So the bar for restraining exercises of public power should be somewhat higher, especially, as Ms. ustice aifeartaigh noted, where the exercise may arise from performance of obligations under EU law for which the State is answerable. The line of cases since k na e emphasise that there is a significant public interest in ensuring that public schemes should operate in an orderly way and may be damaged if implementation of the scheme is suspended. There may be a “silent majority” not before the court who support the scheme and whose interests could be damaged if it is injuncted, a consideration which will rarely arise in private litigation. These cases underline the need to include appropriate weight for the wider public interest in the balancing exercise in injunction applications in public law cases. P

Litigation

ecognising the entitlement of such persons or bodies to carry out their remit without undue interference is an important feature of any balancing exercise

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Do Litigation Costs Always Follow the Event? Departures from the General Principle Matthew Austin and uth Prendeville analyse the recent decision in O’ eilly Anor v eville Ors (2018 IEHC228), which further demonstrates a trend towards a more nuanced approach to the awarding of legal costs in litigation Introduction “ stice is open to all like the Rit otel ” ( ir ames athe 1 0 190 ) iability for legal costs can often present a significant obstacle to parties wishing to exercise rights or assert entitlements by way of litigation. It can also serve as an effective tool to deter parties from pursuing frivolous or unmeritorious claims. The courts are entrusted with the unenviable task of striking a balance between these two objectives when applying costs rules.

Order 99 of the Rules of the Superior Courts The general rule governing litigation costs in the superior courts is set out in Order 99 ule 1(3) SC and provides that unless otherwise ordered, costs follow the event. In essence, the losing party in litigation must pay the winning party’s legal costs. The general rule must be read in conjunction with Order 99 ule 1(1) SC, which states that the costs of proceedings shall be in the relevant court’s discretion. This rule has been interpreted to mean that the courts may depart from the general rule, but only where the justice of the case so requires, and where the case in question involves special circumstances warranting such departure (Fyffes plc v CC plc Ors 2009 2 I 417 unne v Minister for the Environment, Heritage and ocal Government Ors 2008 2 I 775.) 26 the Parchment

Public interest Cases Public interest litigation is one of the areas in which the courts have tended to depart from the usual costs rule. The relevant proceedings must have a considerable element of public importance and the plaintiff must not be seeking a private personal advantage in litigating the matter, although the courts have been sure to stress that these are only two factors to be taken into account when considering whether to depart from the general costs rule. All other circumstances of the case must also be considered (McEvoy Smith v Meath County Council 2003 1 I 208 unne v Minister for the Environment, Heritage and ocal Government Ors 2008 2 I 775.)

Dardis v Poplovka Mr ustice arr’s decision in ar is oplo ka (2017 2 9) is a useful reminder of the perils of pursing in ated heads of loss. In this case the plaintiff had been awarded the sum of €84,688.52 in respect of injuries he suffered in a road traffic accident. This amount included an award of €20,000 for loss of opportunity in the jobs market. In the costs application that followed the substantive decision, the plaintiff claimed that he was entitled to his costs on the basis that he had succeeded in his claim and costs should therefore follow the event in the usual way. The defendant on the other hand,


Autumn 2018 dsba.ie Matthew Austin is a partner in the commercial & business team at Hayes Solicitors. Ruth Prendeville is a solicitor in the commercial & business team at Hayes Solicitors

argued that the court should depart from the general rule in circumstances where the plaintiff ’s substantial claim for past and future loss of earnings in the sum of €620,042, which the plaintiff claimed lengthened the trial by six days, had been described by the court as “totally unrealistic” and had been effectively dismissed. Mr ustice arr found that the hearing was unnecessarily prolonged by the loss of earnings claim by approximately two days and so the plaintiff was not entitled to his costs in respect of those days, or in respect of the costs of the two experts retained to advise upon that claim. Furthermore, the defendant was awarded his costs in respect of two days at hearing together with the fees he had paid to his expert accountant.

O’Reilly & Anor v Neville & Ors Order 99 ule 1A(b) SC allows the courts to have regard to any written settlement offer when considering the awarding of legal costs In Reill Anor e ille rs, the plaintiffs had claimed various defects in building works carried out on their dwelling house by the defendants, and sought damages for breach of contract. Mr ustice inchy made an order for specific performance of the relevant agreement and ordered the defendants to pay the plaintiffs the cost of renting alternative accommodation. The defendants had made no less than five open

written offers to resolve the dispute between uly 2010 and February 2016. Mr ustice inchy described the open offers as “exemplary”, but found that only the most recent offer made on 18 February 2016 would have been likely to resolve the proceedings because earlier offers did not address all issues in dispute. y failing to accept that offer made on 18 February 2016, Mr ustice inchy found that the plaintiffs caused almost all of the costs that were incurred thereafter, with the exception of the costs that exclusively related to the recovery of rent paid by them for alternative accommodation. He made a costs order in favour of the defendants in respect of all costs incurred by them from 18 February 2016 onwards, save the costs that were incurred in connection with the plaintiffs’ claim for reimbursement of the cost of renting alternative accommodation. The plaintiffs were entitled to an order for all other costs incurred by them in the proceedings.

Conclusion Costs orders have the potential to impact upon parties just as much, and sometimes even more, than the substantive outcome of proceedings. It is therefore important when formulating and executing litigation strategy to give due consideration to how this will be viewed by the court when determining liability for costs. P

Litigation

The general rule must be read in conjunction with Order 99 ule 1(1) SC, which states that the costs of proceedings shall be in the relevant court’s discretion

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New Guidelines for Section 47 Assessments The Family Law Court Development Committee of the Courts Service which is chaired by Mr Justice White recently published guidelines to assist parties in the preparation of a report under Section 47 of the Family aw Act 1995 (“a s.47 eport”). Keith Walsh, a member of the committee summarises the guidelines for practitioners

Introduction It must be emphasised that these are only guidelines and it remains a matter for each individual court to determine whether or not it is appropriate to order the preparation of an s.47 eport and if so ordered, how best to manage the process until the s.47 eport is provided to the court by a suitably qualified person (“the Assessor”).

S.47 Reports Not Binding on a Court - Review of Caselaw The guidelines confirm that the purpose of an s.47 eport is to assist the court in determining issues concerning the welfare of a party to the proceedings, or any other person to whom the proceedings relate (i.e. generally children). The guidelines refer to the caselaw which sets out that the s.47 eport, and specifically any recommendations to the court with regard to custody and access of children, are not in any way binding on a court. The weight a court should give to such reports is set out by enham . in c an 2010 2 I. . 199, at p. 268. The guidelines reiterate the position as per Murphy . in ( ) (T ) 1998 IESC 40, wherein he stated that an expert such as a psychologist or psychiatrist, in preparing the social report, should not look to act as a judge in resolving con icts of fact. That function is the sole prerogative of the court.

The Guidelines 1. Obligations on the parties and/or their legal representatives The guidelines set out that parties to a family law case should submit a letter to the presiding judge setting out the issues of contention as they each see them, and based on these submissions the judge should consider the issues to be addressed by the assessor preparing the S.47 report. The guidelines discourage the practice of requesting S.47 reports before 28 the Parchment

the issues to be addressed have been identified while highlighting that in highly contentious cases, it may be necessary for the parties to submit affidavits setting out their respective issues in place of less formal letters, which is a matter for the presiding judge. What ollo s are the act al p lishe g i elines et een the in erte commas At the earliest opportunity and, where possible prior to any formal appointment of the assessor, the parties and/ or their legal representatives shall: (a) If enquiries are being made as to the availability of an assessor prior to his/her appointment, bring to the attention of the assessor the timeframe within which the assessment might be required to be completed; (b) ring to the attention of the assessor if there is a particular urgency to the commencement of the assessment and the reasons for such urgency. In addition, the parties shall bring to the attention of the assessor if there are any child welfare concerns and/or domestic violence issues arising or alleged (c) If there is any delay between making the initial enquiries with the assessor as to his/her availability, and the application coming before the court, the parties shall confirm the assessor’s availability not more than two weeks prior to the court application date; (d) ring to the attention of the assessor at the outset, any difficulties in relation to the parties’ availability for intended meetings and/or the availability of the child(ren) to be assessed, so that the assessor can provide a reasonably accurate estimate of the timeframe within which the assessment can be concluded; (e) In the event that any difficulty around availability subsequently arises at any time, bring same to the attention of the assessor immediately; (f) The parties shall, where practicable not less than one week prior to the hearing date of the application, and in any event prior to the matter coming before the court, identify and exchange in writing the issues


Autumn 2018 dsba.ie Keith Walsh is Chair of the Child and Family Law Committee of the Law Society and a member of the Family Law Court Development Committee of the Courts Service and practices in Dublin mainly in the area of family law

to be addressed in the assessment, a draft letter of instruction to the assessor, and orders which it is proposed the court may be asked to make. Any such agreed issues/proposed orders (or the respective positions of the parties where no agreement has been reached) shall be provided to the court in writing at the commencement of the hearing of the application; (g) As soon as the formal order is made, send a copy of the order to the assessor; (h) After the making of the order, provide the assessor at the outset with all relevant contact details (i.e. home address, landline and mobile phone numbers, email addresses) and bring to the attention of the assessor if either party has any difficulties with any form of communication (e.g. no email, restrictions on use of work mail etc.) (i) Where possible, and subject to any direction of the court, the parties should seek to agree an initial letter of instruction to the assessor setting out the issues which the assessor will be asked to address in the assessment and identifying areas of dispute between the parties; (j) The parties should use all reasonable endeavours to comply with the meeting times proposed by the assessor and any other requirements of the assessor as envisaged by these guidelines or otherwise. The court should encourage the parties to attend meetings as arranged. (k) In the event that any pleadings from the proceedings and/or any other documents covered by the in camera rule are required by the assessor, the parties shall apply to the court seeking an order lifting the in camera rule in respect of any such documentation or to have any dispute as to the release of such information adjudicated by the court at the earliest opportunity; (l) The parties shall acknowledge that no documentation (other than documentation requested by the assessor) shall be furnished by them and/or their legal representatives without the prior agreement of the other party; (m) The parties shall acknowledge that any documentation requested by, and provided to, the assessor by either of them, shall be furnished simultaneously to the other party and/or their legal representatives; (n) Where possible, the parties shall put funding in place for the payment of fees at the outset of the process, if necessary through legal representatives and based upon the fee estimate provided by the assessor. Any difficulty of either party with regard to the funding of an s.47 report should be notified to the other party and/or the court at the earliest opportunity. The court should put in place a mechanism for the payment of the assessor’s fees.

General Matters 1. Subject to the court, it is acknowledged that the assessor shall have general responsibility for, and authority over, the management of the assessment process;

2. The assessor shall endeavour to accommodate all of the reasonable requirements of the parties in terms of the conduct of the assessment but it is a matter ultimately for the assessor to determine appropriate arrangements to ensure that the assessment is conducted in a fair, efficient and expeditious manner; 3. The assessor should have the facility to provide an interim report to the court should the assessor believe that to be necessary (e.g. to recommend on interim custody/access issues, where the assessor is encountering difficulties with one or both of the parties where there is evidence of abuse to a child requiring immediate court intervention etc) 4. Subject to the relevant statutory provisions and to the ultimate authority of the court, the assessor may express a view to the court as to whether all or part of a report may or may not be suitable for release to the parties directly and may make recommendations to the court in that regard; 5. The assessor may express a view as to whether it may be appropriate for the court to consider the appointment of a second or other assessor (whether simultaneously or sequentially) in light of the particular needs of the case and, if so, should specify the reasons why that may be appropriate.

Matters for Consideration by the Court 1. Once an s.47 eport has been ordered, it is recommended that the court should keep the relevant application in the court list for mention to review when the s.47 eport will be concluded and, if there is any delay in concluding the assessment, what steps may need to be taken to ensure that the s.47 eport can be completed within a timeframe appropriate to the circumstances of the case. 2. Make orders/directions which the court believes can assist the process, including (a) A direction that the parties shall comply with all reasonable requirements of the assessor to enable the efficient conduct of the assessment, if so required; (b) ifting the in camera rule in respect of specified documents to be provided to the assessor; (c) Where appropriate, identify in the order-specific issues which the court would wish the assessor to address; (d) That the s.47 eport shall be provided by the assessor only to the court; (e) How the costs of the assessment and report are to be borne as between the parties. (f) If appropriate, confirm that all relevant matters are governed by the in camera rule.’

Family Law

Once an s.47 eport has been ordered, it is recommended that the court should keep the relevant application in the court list for mention to review when the s.47 eport will be concluded and, if there is any delay in concluding the assessment, what steps may need to be taken to ensure that the s.47 eport can be completed within a timeframe appropriate to the circumstances of the case

Conclusion The guidelines provide welcome assistance to practitioners when considering whether a section 47 report is required and also in terms of the process of progressing matters before, during and after a section 47 report has been ordered. The guidelines cannot cover every eventuality and ultimately their interpretation is a matter for the courts themselves and for practitioners. P the Parchment 29


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

The Fundamentals of Marketing Your Practice Flor McCarthy says that at a minimum, solicitors have to deliver an excellent service and exceed their clients’ expectations. If that is not being achieved, you need to fix this before moving on to marketing your business

T Probably the most important fundamental point to drive home here is that marketing, and success generally, is a process not an event

30 the Parchment

he late great im ohn spoke often of the fundamentals. As ohn said there’s a funny thing about fundamentals they’re fundamental. They never get old and we can never repeat them often enough. In fact, the opposite is most often the case because, as with so many things in life, because they are so constantly important and are (or should be) ever present we tend to overlook them or take them for granted. ut we can’t afford to. So here, we will take a look at some of these marketing fundamentals and work through them step-by-step. In this context people often speak about marketing as “daunting”. I get this. Things can easily seem daunting at the start, particularly when we look at others who are more established or advanced, we think “God, where to start, I could never do all of that”. ut the vital point, probably the most important fundamental point to drive home here is that marketing, and success generally, is a process not an event. ou don’t do one thing and you’re done, you show up and do the work, every day. It’s a process. And here’s the secret, it’s an incremental process where each thing you do builds on what you have done before. ou don’t have to do it all at once. In fact if you believe you do it will seem daunting, you’re most likely to give up and that is the only time you fail. The important thing, the only thing, is to start. And then keep going. A little every day. If you want to turn over €500,000 this year, you know you won’t just raise one invoice for €500,000 and you’re done. ou’ll have to close the client, open a file, send the s.68, get the AM , send the letters, issue the summons, observe your deadlines, file the motions, show up on the return dates, close the pleadings, get it set down, marshal the evidence and the

witnesses, get it heard or settled and get paid all the while complying with regulations, managing staff, cash ow and all the rest. And that’s just one file, you know you’ll probably need more than one to hit that target. ut that’s ok. ou don’t need to do them all together, you’ve got a year, in fact many files will extend over many years. ou’ve just got to get each one started and keep each one moving. This is no different. ou start where you are now and you build from there. ou work with the tools that you have. ou will find better ones as you go along to suit your needs and your abilities. So, the fundamentals, what are they Well, indeed many of them are hidden within that very dull list of tasks I listed in the examples of what you need to do to get paid on that litigation file I mentioned above. However, please don’t misunderstand me or get confused here, just doing the file work isn’t going to allow you to get away without marketing. The most fundamental thing you need to have right in marketing your practice is your mindset. And you need to have the mindset that just being a good technician is not enough, you need to be able to market these technical skills, you need to be able to get the work for the technician within you, or your team, to do. Of course you do. ut once you get that work, or if you have an existing business, if you already have that work, you have to do it exceptionally well and you have to communicate that with the client clearly in a way that is beneficial for them as you go along. ou have to do deliver an excellent service and exceed your client’s expectations. ot just legal technical excellence which is essential, but excellent customer service and excellent customer communication. If you’re not doing this as a minimum,


Autumn 2018 dsba.ie

Practice Management

then you need to fix this first before you move to anything else. And if nothing else, the bar is so low here that the opportunities are practically endless. Think of every interaction you have with small owner-operated businesses in your own life, from your own professional advisers to every other service you consume and activity you engage in. How many provide a truly remarkable experience How many communicate with you well How many times have you seen an opportunity for a small and simple thing to be done properly, or better, or at all Unless you live a very charmed existence I’ll wager you’ll have a difficulty in naming one that really stands out for you, certainly not more than one. And this is not confined to small businesses, most big businesses do this terribly too. Here is an easy way to differentiate and market your business by doing something that you might have thought had nothing to do with marketing at all, by good customer service and communication. ecause while many small owner-operated businesses are bad at it, lawyers are actually famous for it. The stereotypical lawyer who never returns calls and only ever writes to send detailed statements of every second of time recorded with an unexpectedly

large bill is a clich that is not without its basis in reality. One marketing fundamental is the idea of a unique selling proposition (USP) for your ideal client i.e. creating a reason why your ideal client should chose you above any and every other alternative available in the marketplace including the option of doing nothing. Ask yourself what your USP is. If you can’t answer it clearly in terms that would make sense to a 12-year-old, this is where you need to start. And I’ve just given you one simple and easy USP. Imagine a lawyer who communicated clearly in language you understood, who always returned calls when they said they would, showed up on time for meetings and never added delay to their client’s matter. So, simply by identifying what drives most consumers of our services nuts about our profession, and then doing the opposite, you have a pretty much ready-made USP for yourself that also provides the foundation for all of your internal marketing, i.e. your client retention and referral generation systems, what is also referred to as your nurture strategy. Simply providing an excellent service, exceeding expectations and employing good communication techniques. Good communication involves communicating regularly and most particularly, when there is nothing to say about progress in a particular matter. P the Parchment 31


Commercial Leases – I Want to Break Free It is common for commercial leases to have break clauses. Adam Hogg takes a closer look at early termination by the tenant or in some cases, the landlord

F

rom a tenant’s point of view, a break clause is an advantage as it gives the option of walking away from a potentially long lease and the obligation to pay rent and related outgoings under that lease. This may be crucial in the event of its business not working out as originally planned, or if the tenant has located a premises in a more advantageous location or on better terms. Compliance with the terms of the break clause within the lease is critical. It is important that the terms of the lease and break clause are clear and it is agreed what conditions must be complied with, before the break clause may be exercised. Key aspects of a break clause include

Notice Period A tenant will ordinarily have to serve 3/6/12 months’ prior written notice on the landlord before he or she may exercise the break. This is known as a break notice. It is very important for tenants to set reminders in advance of the relevant date approaching. The tenant should also ensure that it serves the break notice in the correct name and to the correct landlord entity. For example, in instances where the break notice is being served on a company, tenants will need to be mindful that there may have been restructuring since the date the lease was signed and as a result, the landlord entity may have been changed. andlords may also want to engage an agent and seek legal advice in advance so there is no delay in re-letting the property. 32 the Parchment

Payment Is the tenant obliged to make a penalty payment at the same time as serving the break notice or to just pay the rent and other service charges or insurance, payable under the lease for the duration of the notice period Failure to make the payment(s) will invalidate the tenant’s entitlement to exercise the break clause. The lease must be drafted in such a way that the amount of the payment due is clear or easily calculated. The tenant should ensure that any arrears of rent, insurance or service charge are paid up in advance of the break notice being served. If not, a landlord could claim that the tenant’s obligations under the lease were not complied with on that date, which could jeopardise the break clause, depending on the wording of the lease.

Yield Up and Repairing Obligations It is important that the parties to the lease consider not only the break clause but also the repair and yield up clauses in the lease. The state in which a premises is handed over on the date of termination of the lease will determine if the landlord has a claim against the tenant for breach of covenant. A prudent tenant will instruct a surveyor to inspect the premises having regard to the obligations in the lease, including any appended schedule of condition or side letter or variations, to determine if they have complied with their obligations. A prudent landlord will instruct its surveyor to do the same in advance of the tenant vacating the premises under a break clause. The landlord’s


Autumn 2018 dsba.ie Adam Hogg is a partner in the real estate team at Mason Hayes & Curran. He advises both public and private clients in relation to landlord and tenant law, commercial property

surveyor will advise if there is merit in any claim and prepare a schedule of dilapidations, which will then be served on the tenant. This will specify the areas of non-compliance and estimated costs of carrying out repairs. The tenant will have their surveyor review this and, unless he or she wishes to challenge the assertion of non-compliance, he or she will have the option of paying the landlord in lieu of making the repairs or carrying out the repairs themselves. If the repairs delay the landlord in re-letting the premises, he or she may also claim rent from the tenant during this period.

Vacant Possession It is a standard requirement in a commercial lease that the tenant must hand over vacant possession of the premises on the date of expiry of the break notice. This is known as the break date. The term vacant possession’ unusually is not defined under Irish law but is the subject of much case law. In practice, it means the tenant delivering up the premises unoccupied with all its equipment and contents removed. It also ordinarily requires the tenant to remove all fixtures fittings including any improvements, save those which the landlord has communicated to the tenant may remain in the premises. A landlord may be entitled to claim that vacant possession was not handed over if the tenant has done something or caused something to impact the use of the premises by the landlord or a potential tenant. If the tenant is carrying out works to the premises on foot of repairing obligations or otherwise, he or she must ensure any contractors or agents have vacated

Landlord & Tenant Law

the premises in advance of the break date unless expressly agreed with the landlord in writing i.e. a licence for works.

Dispute If there is a dispute between the parties, the court or arbitrator will strictly interpret the terms of the lease as they are drafted. Only if the terms are ambiguous or uncertain will they also consider the intention of the parties by reference to the heads of terms and any correspondence at the time the lease was put in place. This emphasises the importance of getting the lease right from the start so that it re ects the commercial deal.

Top Tips for Tenants Tenants should seek that a break clause only contains conditions that are clear and capable of being satisfied. ecline the insertion of all covenants in the lease must be complied with’ prior to the break being exercised. epending on the bargaining power of the parties, it should be sufficient that the tenant covenants to pay rent and any other payable charges up to the break date and serves the break notice in accordance with the relevant time period. In terms of dilapidations, start the conversation early and both parties should ensure a schedule of condition is carried out and agreed at the start of the lease. This should limit disputes at the end of the lease by providing a visual record of the state and condition of the premises at the time the lease was granted. P

Tenants should seek that a break clause only contains conditions that are clear and capable of being satisfied

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When €15,000 is worth more than €20,000 in Unfair Dismissal cases? The idea that €15,000 could be worth more than €20,000 may seem like a strange comment. ichard Grogan however, explains that when dealing with unfair dismissal cases - this is the reality

I

know solicitors hate the word “tax” and dislike numbers. However, to explain the point in the heading of this article, unfortunately, some numbers are needed and tax must be addressed. In unfair dismissal cases any award is fully taxable. This comes as a surprise to some. There is no exemption. Even where the award is stated to be made as “compensation” the exemption in Section 192 A TCA 97’ does not apply because Section 123 TCA 97’ applies. In unfair dismissal cases the legislation in Section 7 when it comes to compensation, provides that this will be the financial loss not exceeding 104 weeks remuneration. Section 17 of the Unfair ismissals Act, 1977 then refers to the relevant statutory instruments being in this case S.I. 287 of 1977 which throughout, refers to remuneration. Therefore, when you go back to Section 123 of the Taxes Consolidation Act any such award is remuneration and is taxable. I have set out below a schedule which shows what happens where there is an award of €20,000 as opposed to a settlement of €15,000. ou will see from that calculation that a settlement of €15,000 is one where the employer and the employee are better off. I think it is important that I explain how this is arrived at. Where there is a settlement the employee can claim a tax termination exemption of €10,160. In addition, the employee can claim a sum of €765 for each completed year of service. In certain circumstances an additional €10,000 can be obtained free of tax. In addition where there is a settlement, if any part

34 the Parchment

of the settlement is set out as legal fees, then that element is excluded from any tax calculation. There is no USC. It makes absolute economic sense for those representing employees to seriously consider settlements. There are advantages for the employer also as the employer does not have to pay employer’s P SI on a settlement. There is one area where I would express extreme caution for colleagues and that is where an exemption under Standard Capital Superannuation enefit (SCS ) is being made. It is outside the remit of this article to go into the issue of SCS but what I would say is that it is possible for an employee to obtain up to €200,000 tax free under that system. It is up to that figure, it is not an exemption in itself. However, specific tax advice must always be obtained particularly where the employee has a contributory pension scheme as the tax benefit they are receiving now will automatically be reduced when they get to retirement age by the amount of the benefit they now receive. For some employees this will not be an issue. For others it will most definitely be an issue. It is important that colleagues get appropriate tax advice in relation to cases and are aware of tax consequences. If you reject an offer of €15,000 and obtain an award of €20,000 for your client and suddenly find that instead of the employee getting €20,000 that a cheque for a little over €11,000 comes to your office there can be a lot of explaining to do. I know colleagues will say that they are not tax advisors. If you do not understand the tax issues


Autumn 2018 dsba.ie Richard Grogan is principal of Richard Grogan & Associates Solicitors and Registered Tax Consultants. His firm won the Employment Law Team of the Year Award 2018 at the recent Irish Law Awards

relating to employment law cases then it is important that you ensure that your client gets appropriate tax advice, and before any settlement is put in place or a case is run that you both understand the tax consequences of settling or fighting a case. This applies to employer representatives also. If you act for an employer and an award of €20,000 is made and you arrange for that full €20,000 to be paid to the employee then on a subsequent evenue audit, for up to six years afterwards, the employer can be caught with tax on a grossed-up figure together with employer’s P SI along with interest and penalties. Unfortunately, tax is a minefield of problems for those involved in employment law cases. ifferent considerations apply for different taxes but this article is solely dealing with unfair dismissal cases as they are the ones that colleagues will most often come across. Claims under other acts may be tax free but not all and not in unfair dismissal. All I can advise is that colleagues are careful. That they make sure that if they do not understand the tax they make sure that they get appropriate tax advice. That will be a cost but it is less of a cost than having a situation subsequently arise where a problem arises whether you act for employers or employees. In a case which results in an award where the employee receives an award of €20,000 the result is

Employer Award P SI Cost

€20,000 €2,100 €22,100

Employee Award Tax and USC eceives

€20,000 (€9,600) €11,400

Employment Law

If the case settles for €15,000 and the employee only has one year’s service. Employer Settlement Cost

€15,000 €15,000

Employee Settlement Exemption Taxable Tax eceives

€15,000 (€10,925) €4,075 (€1,955) €13,045

If the solicitor’s fees were €4,075 in the case of an award the employee receives €7,325. If there is a settlement the taxable sum is reduced by €4,075 so the employee receives €10,925. P the Parchment 35


Copyright Modernisation – The Eu Copyright Directive On 12th September 2018 the European Parliament voted in favour of a proposal for a wide ranging copyright directive, the irective on Copyright in the igital Single Market 2016/0280(CO ) also known as the EU Copyright irective. Cian McElhone provides an overview of how this directive is intended to harmonise European Union copyright law as part of the move towards a igital Single Market

T

he copyright reform was first tabled by the Commission on 14 September 2016 as part of the igital Single Market strategy. Earlier this year members of the European Parliament voted not to proceed to negotiation stage on a previous iteration of the proposal but instead voted to reopen the debate in September. The updated proposal will now enter formal negotiations between the Commission, the Council of the European Union and the European Parliament, with talks expected to continue until anuary 2019 before it is formalised. With the proposed EU copyright directive, the Commission wants to: • bring up to date and harmonise some important exceptions to the copyright rules in the fields of research, education and preservation of cultural heritage; • foster quality journalism • ensure that those who create and invest in the production of content have a say in whether and how their content is made available by online platforms and get paid for their content and • increase transparency and balance in the contractual relationships between the creators (authors and performers) and their producers and publishers.

Proposals According to the European Parliament, one of the primary aims of the EU copyright directive is to ensure 36 the Parchment

that artists, musicians, performers and screenwriters are paid for their work when it is used by sharing platforms and news aggregators. To achieve this aim, the EU copyright directive proposes to make online platforms and aggregators liable for copyright infringements. This would also apply to snippets where only a small part of a news publisher’s text is displayed. In reality this will require the information service provider to pay the rights holders for the material that they are using. In an effort to lessen the impact on the smaller entities, it is proposed that the small and micro enterprises are not included in the definition of “online content sharing service provider”. The text includes provisions to ensure that copyright law is observed online without unfairly hampering the freedom of expression that has come to define the internet. Therefore, merely sharing hyperlinks to articles, together with“individual words” to describe them, will not be covered by these proposals. The proposed directive provides for any action undertaken by platforms to check that uploads do not breach copyright rules must be designed in such a way as to avoid catching “non-infringing works”. These platforms will moreover be required to establish effective and expeditious complaints and redress systems through which complaints can be lodged when an upload is wrongly taken down. The text of the proposed EU copyright directive also specifies that service providers that act in a


Autumn 2018 dsba.ie Cian McElhone is a solicitor specialising in media law and is business affairs manager with Fís Éireann/Screen Ireland, the national development agency for the Irish film, television and animation industry

EU/IT Law

non-commercial purpose capacity such as online encyclopaedias like Wikipedia and providers of online services where content is uploaded with authority from rights holder such as educational or scientific repositories, in a non-commercial way or open source software development platforms will not be included in the definition of “online content sharing service provider”. Additionally, in what could prove to be quite controversial although thus far has been overshadowed by article 11 and 13, discussed below, the directive notes that certain contracts for the exploitation of rights harmonised at EU level are of long duration, offering few possibilities for authors and performers to renegotiate them with their contractual counterparts or successors in title. The directive provides for a remuneration adjustment mechanism that will allow for renegotiation of contracts in cases where the remuneration originally agreed under a licence or transfer of rights is disproportionately low compared to the relevant “direct and indirect” revenues and benefits derived from the exploitation of the work. The assessment of any application for remuneration adjustment would take account of the specific circumstances of each case, the specificities and practices of the specific sectors as well as of the nature and the contribution to the work of the author or performer. Such a contract adjustment request could also be made by the organisation representing the author or performer on his or her behalf such as a union or guild, unless the request would be detrimental to the interests of the author or performer. Where the parties do not agree on the adjusted remuneration, the author or performer or a representative organisation appointed by them should on request by the author or performer, be entitled to bring a claim before a court or other competent authority.

Industry Response Unsurprisingly the proposed directive has generated a range of responses and the large majority of press and online coverage has been in relation to articles 11 (which would require online platforms to pay media companies when linking to their articles) and 13 (which puts the onus on web companies to take measures to ensure that agreements with rights holders for use of their work are in effect). On the one hand the authors and content creators, such as the eatles’ Paul McCartney, have expressed their support for the proposals as it will give writers, directors and performing artists the opportunity to ensure that their work is not exploited without proper compensation and strengthen ability to negotiate royalty payments from online platforms that use their work. IMPA A, the industry body representing independent music companies across Europe hailed it as a “great day for Europe’s creators. The Parliament has sent a clear message that copyright needs to be modernised to clarify obligations of platforms with regard to the creative works they distribute”. This was echoed by Pauline urand- ialle, chief executive of FE A, the body representing film and television directors in Europe. “European screenwriters’ and directors’ work is hindered today by unstable, low

income. The European Parliament rightly exercised its power to reverse the trend and set more sustainable conditions for tomorrow’s European audio-visual creation”. However on the other hand, critics have warned that the proposed directive restricts the internet and threatens its most basic practices around linking and sharing images. Critics such as Wikipedia founder immy Wales and World Wide Web creator Tim erners- ee, whilst sharing concerns for fair distribution of revenues, feel article 13 is not the best way to achieve this and have likened the proposed directive to the death of the internet transforming “the internet from an open platform for sharing and innovation into a tool for automated surveillance and control of its users”.

What’s Next eedless to say the effects of this directive will be wide ranging and felt in all corners of the creative content world. However, with a large amount of the real detail remaining unclear, many multi-national technology companies appear to be reserving comment. Over the coming months of negotiations there is much to be discussed as the EU moves to get the directive into final form for it to be passed into law, with a vote likely to occur in anuary 2019. P

The text includes provisions to ensure that copyright law is observed online without unfairly hampering the freedom of expression that has come to define the internet the Parchment 37


Recent Court Decisions are a Welcome Development for Owners and Occupiers Margaret Cordial notes that the courts have held in a number of recent decisions that occupiers are entitled to presume that visitors to their property will take reasonable care for their own safety, as Section 3 of the Occupiers iability Act, 1995 envisages

M

ost recently, in May 2018, the High Court re-affirmed the application of common sense principles in determining what amounts to reasonable care and has extended its application to an employee in a similar, although not necessarily identical, way to how it applies to a visitor.

Overview In 2017 the Court of Appeal in the case of yrne -vArdenheath 2017 1 IECA 293 delivered an important judgment in relation to occupiers’ liability, and negligence generally. The plaintiff in this action was delivering lea ets in the course of her employment. She parked her car, stepped over the kerbstone in front of the car, and headed down a grassy bank to the footpath which was no more than 10 feet away. She slipped while descending the steep slope and suffered a serious fracture to her ankle. She succeeded in her claim before the High Court on grounds including that the grassy bank was steep, and railings should have been put in place for pedestrians to ensure their safety or measures should have been taken to ensure people did not use the said grassy bank. The decision was overturned on appeal. Ms ustice Irvine held in her judgment that the owners of the shopping centre had not breached their statutory duty 38 the Parchment

to take reasonable care of the plaintiff’s safety on the following grounds: irst o all as s (2) o the Act makes clear the occ pier is entitle hen eci ing hat steps it sho l take to compl ith its o ligation to ass me that its isitors ill take all reasona le care or their o n sa et an that an a lt normall can look a ter his or her el are That egs the estion as to hat Ar enheath as occ pier as entitle to e pect o a isitor s ch as s rne ho ante to lea e the smaller car park on oot to go to the ho sing estate across the roa rom the car park In this regard the, Court of Appeal held that it was satisfied that Ardenheath was entitled to assume that an adult exercising reasonable care would avoid the wet grassy slope, particularly having regard to the presence of the 6-inch kerbstone, the fact that they were wearing shoes that provided little grip, and that they needed to go no further than the modest distance required to leave the car park through an entrance using a tarmacadam surface. This is not a case where, in order to have avoided the wet grassy slope, Ms yrne would have been required to walk any substantial distance in order to find a dedicated surfaced exit. Ms ustice Irvine summed up her decision by stating, “All that is not to sa that there is an thing to stop a isitor s ch as s rne eci ing to take a short c t o n s ch a slope to get more ickl or irectl to their esire estination o e er i the o the cannot e sai to ha e se reasona le care or their


Autumn 2018 dsba.ie Margaret Cordial is a solicitor at AMOSS Solicitors

o n sa et an i the are in re as a res lt the cannot seek to lame the occ pier am accor ingl satis e as a matter o la that in pro i ing isitors to its smaller car park ith a sa e an pro imate entrance Ar enheath complie ith its t to take reasona le care or s rne am satis e that to hol Ar enheath lia le or reach o its stat tor o ligations or ailing to install a arrier along the area o grass rontage to the north si e o the smaller car park in or er to stop pe estrians s ch as s rne e iting the centre going o n a short t steep grass slope hen there as a sa e e it onl a short istance a a o l e prepostero s an o l e tantamo nt to constit ting Ar enheath the ins rer o the sa et o its c stomers rther to concl e that Ar enheath as o lige to eplo pre entati e meas res o the t pe propose r Tenn son in or er to meet its “reasona le care” o ligations n er s (2) o the Act o l potentiall ha e signi cant a erse reperc ssions or all o those ho occ p lan open to isitors hich is not entirel at s ch as the local a thorities responsi le or man o the on er l open spaces an parks in this co ntr ” In May 2018, the High Court in O’Connor v. Wexford County Council 2018 IEHC 232 applied the reasoning of the Court of Appeal in Ardenheath when it dismissed a personal injuries claim arising from a slip and fall at work, on grounds that the plaintiff, who was a water inspector, did not exercise common sense, and failed to take reasonable care for his own safety by using the

Litigation

steep incline to access the manhole when there was a at route a modest distance away. Mr ustice Twomey held that st as in the Ar enheath case here the plainti took a short c t o n a et grass slope o 1 e en tho gh there as a sa e ro te a mo est istance a a an the o rt o Appeal hel that she i not take reasona le care or her o n sa et so too in this case this co rt concl es that the plainti i not take reasona le care or his o n sa et sing the steep incline to access the manhole hen there as a at ro te a mo est istance a a The High Court in noting that while Ardenheath was an occupier’s liability case and the case before it was an employer’s liability case held that the application of common sense principles to determining what amounts to reasonable care applies to an employee such as Mr O’Connor in a similar, although not necessarily identical way, to how it applies to a customer in a shopping centre, as was the situation in Ardenheath. Apart from Ardenheath and O’Connor, similar reasoning has also been adopted by the courts in a number of other relatively recent decisions as considered below: In Comerford -v- Carlow County Council 2017 1 IEHC 720 the plaintiff suffered injuries when he slipped and fell on a hole in pedestrianised cobble lock very close to his home. His claim for damages was

It dismissed a personal injuries claim arising from a slip and fall at work, on grounds that the plaintiff, who was a water inspector, did not exercise common sense, and failed to take reasonable care for his own safety the Parchment 39


The recent decisions of the courts in dealing with claims alleging negligence where ordinary common sense has been brought to bear on what amounts to reasonable care by a plaintiff in both occupiers’ and employers’ liability cases is a welcome development for owners and occupiers 40 the Parchment

dismissed by Mr ustice Twomey who held as follows The most signi cant actor in this case ho e er is that the section o missing an e ecti e co le lock is er signi cant in si e since it is at least 0 inches in length an appro imatel 25 inches i e n this regar this co rt hel that it as o lige to ollo the la on personal in ries as lai o n the o rt o Appeal an in oing so reiterate the principle e presse the o rt o Appeal in rne Ar enheath that it is o lige to ring or inar common sense to ear on their assessment o hat sho l amo nt to reasona le care ” In applying this principle, the court held that it was difficult to see how the plaintiff did not see the hole of this si e and simply avoid it, particularly as it is directly under a lamp post and there was no suggestion that the lamp post was not working at the time of the accident. In an alsen v. avy Hickey Properties td 2016 IEHC 717 Ms ustice Fulham dismissed a claim for personal injuries that arose when an employee slipped and fell on a mown landscaped slope between the public footpath and the defendant’s property when attempting to gain access to a building, on the grounds that there was a safe means of access that the employee had previously used but had chosen to use a different route resulting in the accident. In the court’s view, the defendant had provided a safe means of access to its workplace and the accident occurred because the plaintiff chose not to use the designated access. There was no evidence that the defendant was aware that people were using the embankment as a means of access. In the circumstances, the court held that the defendant could not be faulted for not carrying out a risk assessment. In Chambers v Powerscourt Estates td 2016 IEHC 717 the High Court dismissed proceedings seeking damages for injuries caused to the plaintiff’s wrist arising from a fall on a steeply sloped garden path whilst visiting the defendant’s estate with her mother, who was in a wheelchair. The plaintiff was pushing her mother in a

wheelchair along a path in the gardens of Powerscourt House and alleged that owing to a very steep slope on the path she was caused to lose control of the wheelchair and fall to the ground, resulting in an injury to her wrist. Mr ustice arr dismissed the plaintiff’s claim on the grounds that she failed to consult a map provided by the defendant detailing various “safe” routes available and that the existence of such a steep slope would have been readily observable by the plaintiff prior to the fall. The court went on to hold: “ n er the cc piers ia ilit Act 1995 an occ pier o es hat is calle “the common t o care” to ar s a isitor s ch as the plainti This is a t to take s ch care as is reasona le in all the circ mstances to ens re that a isitor oes not s er in r or amage reason o an anger e isting on the propert n essence the occ pier has to take reasona le care or the sa et o the isitor” On the basis of the facts before it, the court was satisfied that, where clear instructions had been given and where the plaintiff had been supplied with a clear and easily understood map of the gardens, the defendant had not failed in the common duty of care it owed to the plaintiff. While the court noted that the provision of a sign at the top of the path which had the slope on it, may have prevented the accident, the fact that there was a slope on that path, was something which should have been readily observable to the plaintiff.

Conclusion The recent decisions of the courts in dealing with claims alleging negligence where ordinary common sense has been brought to bear on what amounts to reasonable care by a plaintiff in both occupiers’ and employers’ liability cases is a welcome development for owners and occupiers. The 2018 High Court decision in O’Connor v Wexford County Council serves as useful confirmation of the statutory position that employees are also under a clear duty to take reasonable care for their own safety. P


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What is the Financial Cost of Delayed Legislation? en Mannering looks at a decision of Mr. ustice Twomey in the High Court which gives an insight into not only to principles applicable to one particular category of personal injuries, namely garda compensation, but also, indirectly, the cost of delayed legislation

The now sixyear delay in the passing of the legislation has cost approximately €20m to the taxpayer

T

he case of iall Kampff v Minister for Public Expenditure and eform High Court 2016 383 SP sets out the principles laid down by the Court of Appeal and the Supreme Court, which the High Court is obliged to apply, to the calculation of how much general damages are appropriate for any personal injury including 1. The relevance of the average earnings for people in Ireland of €45,611 per annum or €3,800 per month to the calculation of general damages 2. The necessity of awards for personal injuries to be proportionate to the cap on general damages of €450,000 and 3. The effect of the recent downwards recalibration by the Court of Appeal of the awards of general damages for certain personal injuries.

Case Facts Garda Kampff made a claim for compensation pursuant to the Garda (Compensation) Act 1941 (as amended) arising out of injuries sustained when he struck his hand off shelving when he was effecting the arrest of a suspect on 1st September 2013. It was suggested to the court that in the ook of uantum published in 2016, the appropriate compensation should be in the region of €21,700. Mr. ustice Twomey then went on to set out the principles applicable to personal injury awards, brie y set out above. Ultimately, Mr. ustice Twomey awarded €5,000 to Garda Kampff. o doubt, the wider effects of the judgment will be discussed elsewhere.

42 the Parchment

The judgment is another endorsement of the necessity to reduce the costs not only of compensation but also the costs associated therewith. Coming after the Cost of Insurance Working Group report and the work of Mr. ustice Kearns (retired) in the Personal Injury Commission, it seems clear the courts now intend to endorse the wishes of society to reduce these costs to a fair and reasonable level, proportionate to the earnings of the taxpayer who are not only litigants themselves but also the funders of the public purse. The judgment in the writers’ view, also sets out in an understated manner, the costs of the delay in passing legislation. Mr. ustice Twomey placed the value of legal costs in garda compensation cases at between €15-€20,000 or €100,000 per week (based on the cases before him that week). The judge suggested the introduction of the use of a PIA -type system for such cases and the consequential savings to the taxpayer in introducing such a system.

Current System, Proposed Changes and Cost of Delayed Legislation Mr. ustice Twomey rightly stated that garda compensation cases are solely in the remit of the High Court and are not the subject of the Injuries oard process. Whilst the regime under which an Garda S och na are compensated for injuries on duty is the subject of legislation going back 1945, proposals for reform of the system have been mooted since the Garda Compensation ( ill) 2012. The mooted reforms will involve not only the Injuries oard but also probably


Autumn 2018 dsba.ie Ben Mannering is a solicitor with the State Claims Agency. His views in this article are personal and not to be taken as the view of the National Treasury Management Agency

Litigation

the State Claims Agency in the process of resolving cases for garda compensation without impeding the right of an Garda S och na to access the courts. The egulatory Impact Analysis ( IA) from the Garda S och na Compensation (Malicious Injuries) ill 2012 states that approximately 170 to 200 claims are submitted each year under the scheme with the High Court making awards in approximately 200, as you can see from figures released by the IA (see Appendix 2). In addition it is estimated that in 2011 alone there was an estimated administrative cost of €1m (refers to the courts, office of the CSSO, an Garda S och na and the epartment of ustice and Equality). An FOI response released by an Garda S och na estimated the cost from 2012-2017. On a cumulative basis, the average percentage of costs (€28.25m) versus awards (€71.15m) for the last ten years from the above figures amounts to approximately 40 of the awards. If one assumes the similar costs for year end 2017 above and 2018 (and the administration costs of €1m p.a.), the costs incurred since the initial bill was introduced equate to approximately €20m. Thus had the original bill been enacted in 2012, currently in a different guise before the il in 2018, it seems reasonable to conclude that the now sixyear delay in the passing of the legislation has cost approximately €20m to the taxpayer even though this system could deliver a fairer and more efficient system of compensation to frontline Garda with a 40 cost saving. P the Parchment 43


UK Pensions in Family Law Proceedings Belfast solicitor Claire Edgar sets out the position with UK pensions when they arise in family law proceedings here

T

he world is becoming a smaller place with ever greater opportunities for people to travel and work in different jurisdictions. In our part of the world, it is commonplace for people living in Ireland to travel to various parts of the UK for work purposes and vice versa. If an Irish citi en has worked in the UK for any period of time, they may have accrued a pension with their UK employer. When considering the matrimonial assets on marriage breakdown, a pension asset can be a considerable one. For the purposes of divorce proceedings in the UK or in Ireland, any pensions

44 the Parchment

accrued by a spouse in another jurisdiction during the course of a marriage can be taken into consideration when negotiating the settlement of marital claims each party may have. When divorcing couples in Ireland are negotiating financial settlement upon marital breakdown, there is often a situation whereby one of the parties has accrued a pension through previously working in the UK. And this UK pension can of course be taken into consideration by the parties when negotiating a financial settlement. A popular way of dealing with the existence of a UK pension in such circumstances is to offset the other spouse’s interest in it against other assets which are held in the jurisdiction of Ireland. However, there are some cases in which offsetting is not the preferred option and the parties agree that this UK pension should be shared. What parties may not be aware of is that in order to share this pension, they will need to get an order from the UK courts so that the UK pension trustees can implement the pension sharing order. In the UK, the Welfare eform and Pensions Act 1999 makes provision for pension sharing’ following divorce. However, the legislation does not provide for the pension sharing mechanism to be triggered by an order made by a court outside the UK. As such, even if the Irish courts upon divorce made a pension sharing order in respect of a UK pension, the pension trustees in the UK will not implement this order without a similar order being made by a UK court. The good news is that UK legislation does allow for a pension sharing order to be made in the UK in relation to a marriage that has been dissolved overseas. Therefore, if agreement is reached during an Irish divorce for a pension sharing order of a UK pension, an application can be made to a court in


Autumn 2018 dsba.ie Claire Edgar is a partner at Francis Hanna & Co Solicitors Belfast specialising in divorce and family law

the UK to allow for the pension sharing order to be implemented. This application is made under Part I of the Matrimonial and Family Proceedings ( orthern Ireland) Order 1989, which covers financial relief in orthern Ireland in relation to overseas divorce, etc. This legislation provides that where a marriage has been dissolved overseas and this divorce is entitled to be recognised as valid in I, then either party may apply to the court for an order for financial relief. The procedure is that an application is issued for leave to bring proceedings within the jurisdiction of orthern Ireland for a pension sharing order in the terms agreed by the parties. One spouse makes this application to the High Court in orthern Ireland with the consent of the other spouse. In order to establish that the court in orthern Ireland has jurisdiction to make the pension sharing order, the parties must satisfy one of a number of jurisdictional requirements • That either of them is domiciled in I or, • That either was habitually resident in I for the previous year or, • That either has a beneficial interest in a property in I.

Family Law

Many Irish divorcing couples will not be able to satisfy any of the jurisdiction requirements above. In these circumstances, they will then have to prove jurisdiction under the EU Maintenance egulation (Council egulation EC 4/2009 which replaces EC 44/2001). Article 7 can be relied on here to show jurisdiction on an “exceptional basis” given that no other EU member state has jurisdiction and proceedings cannot reasonably be brought in a third state for the pension sharing order. Although somewhat convoluted, this is an effective way of establishing jurisdiction within orthern Ireland. In my experience of cases of this nature, the courts in orthern Ireland will grant leave and make the pension sharing order as required by the pension trustees. The aw Commission in its ecember 2016 report recommended that a new ground of jurisdiction should be added to the equivalent legislation in England giving the court the power to make orders in respect of and limited to pensions based in the jurisdiction. Until those recommendations have been implemented, we will continue to rely on the process set out above. Of course, what will happen after rexit is as yet unknown. P

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Autumn 2018 dsba.ie Greg Ryan is Vice President of the DSBA. He is principal of Greg Ryan Solicitors

News

“Preparedness” for Brexit On 19th uly 2018, the European Commission published a communication preparedness encouraging both member states and stakeholders to stop preparation “at all levels and for all outcomes”. Greg yan takes a closer look at this significant issue

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he Commission has stressed that there is still no certainty that there will be a ratified withdrawal agreement by 29th March 2019 or indeed what that would entail. The communication strongly suggests that EU negotiators consider the “no deal” scenario a distinct possibility. In particular, business owners and professionals are called to be prepared for the withdrawal and to mitigate the worst impacts of a potential cliff edge scenario. The Commission reminded practitioners that the EU egulatory Framework that applies to third countries is in place already, and this will remain unchanged on the withdrawal date. In this respect a notice has also been prepared on regulated professions and the recognition of professional qualifications. Although this notice does not deal with the awyers Establishment irective 98/5 it may still be of interest to consider in so far as it deals with the recognition process under Professional ualifications irective 2005/36/EC which also offers a route to EU lawyers to acquire a lawyer’s title of another EU member state. The notice sets out the following principles 1. ecognitions of professional qualifications recognised before the withdrawal date. The withdrawal of the United Kingdom does not affect decisions on the recognition of professional qualifications obtained in the United Kingdom taken before the withdrawal date on the basis of irective 2005/36/EC by an EU-27 member state. 2. ecognitions as of the withdrawal date of professional qualifications. As of the withdrawal date, UK nationals will become third country nationals and hence irective 2005/36/EC no longer applies to them. 3. Concerning EU-27 nationals, qualifications obtained in the UK are third country qualifications and the recognition of those will be in accordance with Article 2(2) of irective 2005/36/E i.e. the recognition will be governed by the national policies and rules of each of the EU-27 member states. Other relevant preparedness notices for a “no deal” scenario, include the following

Data Protection Apart from an adequacy decision, the EU data

protection rules allow a transfer if the controller processor has provided appropriate safeguards. These safeguards may be provided for by A. Standard data protection clauses the Commission has adopted three sets of model clauses which are available on the Commission’s website. . inding corporate rules legally binding data protection rules approved by the competent data protection authority, which apply within a corporate group. C. Approved codes of conduct together with binding and enforceable commitments of the controller or processor in the third country. . Approved certification mechanisms together with binding and enforceable commitments of the controller or processor in the third country.

Civil Justice International jurisdiction will be governed by the national rules of the state in which the court has seisin. ecognition and enforcement judgments issued in the United Kingdom are no longer recognised and enforced in EU member states under the rules of the EU instruments in the area of civil and commercial law as well as family law and vice versa. They will henceforth be governed by the national law of the state of which recognition and enforcement is sought, or by international conventions where the EU and the United Kingdom are contracting parties.

Citizens’ Rights The UK Government has published a new white paper on the “withdrawal agreement” which sets out a proposed framework to enshrine the future “withdrawal agreement” in UK aw. All UK nationals lawfully residing in a member state by 31st ecember 2020 will be able to stay as will EU citi ens lawfully residing in the UK. The EU nationals residing in the UK continuously for five years will be able to apply for settled status through an EU settlement scheme. ext steps both the UK and EU sources have proposed that the informal summit in Sal burg will be used as an opportunity for the EU to consider a more exible approach toward the white paper or to press the UK Government to change its own stance. It is hoped the “withdrawal agreement” will be finalised in late ovember. P the Parchment 47


Keith Walsh is chairman of the Child and Family Law Committee of the Law Society and is a member of the Circuit Court Rules Committee

In Practice

New Circuit Court Rules effective October 2018 Keith Walsh advises that three sets of new Circuit Court rules were introduced to take effect from 17th October 2018. o. 1 makes receipt of court documents by email easier, o. 2. deals with fine payments and recovery changes and o.3 makes changes to Order 68 re Sexual Offences

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he Circuit Court rules have been amended to enable parties wishing to receive documents in proceedings by email to indicate as much in the originating document, or as appropriate, in the appearance .S.I. 378/2018 which comes into effect as and from 17th October 2018 provides for same as follows

1. What Solicitors for the Plaintiff Need to do e has been substituted so as to provide that a solicitor acting for a plaintiff or a plaintiff suing in person, where consenting to the receipt of documents by electronic mail, shall additionally endorse upon the Civil ill his or her electronic mail address (in lieu of his or her registered place of business) to which documents in the proceedings may be sent in electronic form. The endorsement is amended accordingly - see bold below new O E 5 ule 3(3) “This Civil ill was issued by......, whose registered place of business is........, o o se ts to t e serv e o o me ts t e ro ee s b e e tro m to , solicitor for the plaintiff, ........., who resides/has his/her place of business at...... and is..........”

2. What Solicitors for the Defendant Need to do 1 e 1 has been amended to provide that • a defendant entering an appearance shall send same, where the Civil ill signifies consent to such means, by electronic mail, to the plaintiff (if (s)he sues in person) or to his or her solicitor • an appearance shall, where the defendant/defendant’s solicitor consents to the receipt of documents in the proceedings by electronic mail, contain his or her electronic mail address to which documents may be sent in electronic form This Appearance is entered by ..............., solicitors, whose registered place of business is at.........., solicitors for the defendant o o se t to t e serv e o o me ts t e ro ee s b e e tro m to • in any proceedings where entry of an appearance is not required or any case where consent to the receipt of documents in the proceedings by electronic mail has not been endorsed under the preceding provisions, a 48 the Parchment

solicitor or party may give notice of such consent by letter in writing sent by ordinary pre-paid post to the other party or, if that party is legally represented in the proceedings, that party’s solicitor. ote this also applies to an appearance contesting jurisdiction pursuant to the convention on jurisdiction and the enforcement of judgments in civil and commercial matters signed at russels on 27 September 1968 egulation (EU) o 1215/2012 the convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters signed at ugano on 30 October 2007 Council egulation (EC) o 2201/2003 Council egulation (EC) o 4/2009. Other Circuit Court rule changes which came into effect from 17th October 2018 are

S.I. No. 379 of 2018 Circuit Court Rules (Fines (Payment and Recovery)) 2018 Section 7 of the Fines (Payment and ecovery) Act 2014 provides a range of sanctions (attachment of earnings, recovery order by sheriff, community service or imprisonment) relating to the enforcement of the fine where the person the subject of the fine has failed to pay the fine by the due date. Where such a person is in default, they must be notified in writing to attend court on a specific time and date and to provide to the court a statement in writing of their financial circumstances. Section 7(10) of the Act provides that the form of statement of financial circumstances will be prescribed in the rules of court. The changes insert a new Order 41A (Fines (Payment and ecovery)) in the rules of the Circuit Court to provide for the issue of a notice to attend court in accordance with section 7(4) of the 2014 Act and prescribe a statement of financial circumstances (form 55) in accordance with section 7(10).

S.I. No. 380 of 2018 Circuit Court Rules (Order 68) 2018 - Sexual Offences These changes to the rules follow on from the introduction of section 19A of the Criminal Evidence Act 1992, as inserted by section 39 of the Criminal aw (Sexual Offences) Act 2017. P


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Property

Payment of Land Registry Fees – Phasing out of Cheques Although the P A is moving all payments online, this is a transitional phase so cheques will be accepted for a bit longer

Electronic payments to the PRA can be made three ways namely by direct debit credit/debit card payment or a deduction from an existing and Direct account

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ractitioners will be aware that the Property egistration Authority (P A) is moving all of its payments online and that cheques will no longer be accepted. In a recent article in the Gazette (Aug/Sept 2018), it was stated that the P A move to online payments would commence 1 October 2018 and that no more cheques will be accepted after October. However, the Property Committee has been in touch with the P A which has confirmed there is not a 1 October 2018 deadline for the phasing out of cheques, however, the following should be noted • The P A is in a transition period and it is phasing out the complete use of cheques in l te 2018 rst o 201 ; • uring the transition phase, the P A will not be rejecting applications that are submitted with cheques and • The P A strongly advises practices to commence arrangements to set themselves up for electronic payments as soon as possible in order to avoid a rejected application in the future. Electronic payments to the P A can be made three ways namely by direct debit credit/debit card payment or a deduction from an existing and irect account.

What You Need to do er ser o e Firms will need to liaise with and irect to make the necessary arrangements. A ‘super user’ must be set up on a firm’s and irect account and the ‘super user’ can then assign the relevant ‘fee approver’ role(s) to selected users on the account. If a firm needs to confirm if they already have a ‘super user’ set up, they can email landdirectfees prai.ie. If no ‘super user’ has yet been nominated, a re t orm will need to be completed and emailed to landdirect prai.ie. me t met o s ee rover o e ou must assign a ‘fee approver’ role to at least one and irect account user in order to pay for applications electronically. The following fee approver roles are available to select in and irect • ee rover re t eb t r role allows a user to pay for land registry applications using a debit or credit card • ee rover re t eb t role allows the user avail of a direct debit facility by paying for an application on our receipt of the application, provided the and irect Form 4 has been completed and forwarded to the P A. To pay by direct debit please complete and irect Form 4 - payment for land registry applications by direct debit • ee rover re t o t role allows a user to pay for land registry applications and have the registration fees immediately deducted from the and irect account balance provided there are sufficient funds in the and irect account. Should you wish to avail of paying for land registry applications by direct debit and have not already forwarded your bank details, please complete and irect Form 4 and post the completed form to the and egistry’s Finance Unit, the full address for which is stated on the form. oth and irect Form 3 and and irect Form 4 can be accessed on landdirect.ie by selecting help’ from the menu of options to the right hand side of the screen and then selecting How to pay for an application online.’ Any queries should be addressed to landdirectfees prai.ie P DSBA Property Committee

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Autumn 2018 dsba.ie Robbie Slattery is a corporate and commercial associate solicitor at Hayes Solicitors. Michael Kelly is an associate solicitor in the commercial litigation & dispute resolution team at Hayes Solicitors

Litigation

Extensive Discovery Applications – end of an era? obbie Slattery and Michael Kelly, both of Hayes Solicitors examine a recent Court of Appeal decision (Tobin v the Minister for efence and others, 2018 IECA230) in which they acted for the defendant, and say that it will have implications on discovery applications in future

This decision may mark the end of unnecessary discovery requests as a party seeking discovery is now under an obligation to explore all other avenues of obtaining information before seeking orders for discovery from the court

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t is undeniable that discovery applications take up a considerable amount of the court’s time and the discovery process is often a source of extensive delays and significant additional costs to the parties to proceedings, Indeed in the 2009 case of Thema International Fund P C v- HS C International Trust Services (Ireland) 2011 IEHC496 discovery costs were estimated at €10m. A number of US commentators (Craig Florence and avid Grant) estimate that discovery can account for up to 80 of litigation costs. A recent Court of Appeal decision of Tobin v- the Minster for efence has indicated a radical change in how discovery will be dealt with and may eradicate the foundational authority set by Peruvian Guano case 1882 55 which made it relatively easy for parties to justify wide-ranging and vast discovery requests. In doing so, the courts have recognised the significant cost and time constraints that discovery has had upon parties to litigation.

The Decision The plaintiff obtained an order for discovery in the High Court which was appealed by the defendants to the Court of Appeal. The defendants, in both their notice of appeal and replying affidavits, suggested that interrogatories (a procedure where one party to a case requires the other party to answer on oath a list of questions) would be a more appropriate means of providing the relevant information than the comprehensive discovery sought and even went as far as to suggest what form the interrogatories might take. The Court of Appeal acknowledged that the defendants would have to go to considerable expense in order to comply with the discovery order made by the High Court, as it covered documents going back approximately 30 years. The court held that while the State is in a better position compared to other defendants to deal with such discovery requests, the State as a party to litigation, cannot be treated differently and less favourably than any other litigant.

The court in allowing the appeal, held that no order for discovery will be made unless all other avenues of obtaining such information, such as the suggested interrogatories, have been exhausted and only in circumstances where other avenues are shown to be inadequate will an order for discovery be granted.

Practical Effect of the Decision The practical effect of this decision is that there is now an obligation on parties to proceedings to explore all other available options before seeking discovery and a party may well be able to resist a broadly worded discovery request by arguing that the information sought is more properly a matter for interrogatories or notice to admit facts as the case may be. udge Hogan found that “in cases where the discovery sought is likely to be extensive, no such order should be made unless all other avenues are exhausted and these have been shown to be inadequate”. This decision is reminiscent of udge Hogan’s decision in Armstrong v Moffatt 2013 IEHC 148 which revolutionised the way notice for particulars are dealt with. However, udge Hogan did confirm that where alternative avenues do not provide the information required (such as where the responding party was not forthcoming with their responses to interrogatories) it will be open to the plaintiff to seek the information by way of discovery.

Conclusion The discovery process has been cumbersome, costly and often resulted in protracted proceedings. However, this decision may mark the end of unnecessary discovery requests as a party seeking discovery is now under an obligation to explore all other avenues of obtaining information before seeking orders for discovery from the court. Parties faced with wide-ranging discovery requests should consider how else the information sought through such documents might be obtained by the other side, and if appropriate, invite the other party to seek that information through those alternative channels rather than through the discovery process. P the Parchment 51


News

Court of Appeal (Civil) Callover of Appeals Listed for Hearing With effect from Michaelmas term 2018 there will be a callover of appeals listed for hearing. The purpose of the callover is to confirm that all submissions and books of appeal have been lodged in accordance with the provisions of Practice irection CA06 and/or that all directions of the court have been complied with. It is imperative that the parties are represented at the callover failure to appear may have costs implications and/or result in the vacating of the hearing date. The first such callover took place on Friday 5th October 2018 for the appeals listed for hearing during the week beginning 22nd October 2018. Thereafter there will be a callover each Friday in respect of appeals listed for hearing during the week commencing the following Monday fortnight. While the office will endeavour to notify the parties of the date of the callover in respect of appeals already fixed for hearing it is the responsibility of the parties to check the legal diary for the date of the callover relevant to a particular appeal. G Manners Registrar of the Court of Appeal

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Judge Rosemary Horgan, President of the District Court; Keith Walsh solicitor, Chair of the Child and Family Law Committee of the Law Society; Judge Mary Cashin; Judge Geraldine Carthy; Clare Feddis, Chair Family Lawyers’ Association

Recent appointment of District Court Judges Galway solicitor Mary Cashin and Geraldine Carthy, formerly of eidy Stafford Solicitors in aas were both appointed to the istrict Court. oth solicitors have many years experience in family law and are moveable judges. udge Carthy is currently sitting in olphin House and udge Cashin is outside ublin.

Young DBSA Members and Young Bar Council Team Up The S A ounger Members’ Committee and the oung ar Council of Ireland are delighted to announce they will be hosting a dinner at the Honorable Society of Kings Inns at 18.30 on Saturday, 17 ovember 2018 for junior qualified solicitors and barristers. Location:

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Lavery House, Earlsfort Terrace, Dublin 2, D02 T625, Ireland Tel: +353 1 6624747 Fax: +353 1 6612163 Email: law@hayes-solicitors.ie www.hayes-solicitors.ie

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Time: Date:

Honorable Society of Kings Inns, Henrietta Street, ublin 7 18.30 to 21.30, (drinks reception at 18.30) Saturday, 17 ovember 2018 The event will be continued at an after party in the Sheds private members bar from 9pm til late.

Further information to follow. The price for each ticket is €75. Sponsorship opportunities available. Please contact eirdre Farrell or Aideen Shanley, co-chairs S A M committee at chairdsbayoungermembers gmail.com for further details.


Autumn 2018 dsba.ie

News

LEAP Legal Software opens its Dublin office Labour Court Update EAP, a leading cloud software provider for small to medium-si ed law firms recently opened an office in Pembroke Street Upper, headed by EAP sales manager for Ireland, ohn onigan. Having been operating in orthern Ireland for the past 18 months the EAP development team has been working hard to bring the software south of the border,

helping to streamline the processes of and increase the profits of law firms in Ireland. Having recently introduced a Euro version of EAP, the tailored product includes a library of over 1,000 highly automated Irish legal forms and precedents across the most common areas of law with up-to-date legal rates and charges applied, in accordance with the Irish legal system.

Comyn Kelleher Tobin and Jim Eustace Merge In une leading law firm Comyn Kelleher Tobin (CKT) announced its acquisition of well-known litigation practice, im Eustace and Company. The merger is part of CKT’s strategy for growth in ublin which includes relocation to new office space in the city centre. Four new solicitors also join the firm. The firm’s new ublin offices are now based in Smithfield, ublin 7, relocating from Ormond uay. This merger cements CKT listed in the Top 25 in Ireland as a leading Irish defence litigation practice. The firm which employs over 60 people between its offices in Cork and ublin, already has one of the largest healthcare legal teams in Ireland. CKT managing partner, eborah Moore said the acquisition and relocation mark a significant milestone for the firm. “This is a new chapter in CKT’s history complementing our existing business

while bolstering our firm and its presence in ublin. “Through such planned and strategic investment in the growing ublin market, we are meeting increasing client demand for our services, particularly in defence litigation. This strengthens our team in the areas of health, child welfare and litigation, and ensures that our clients receive the best possible advice.” CKT represents regional, national, and international clients across the legal spectrum with services also including commercial, construction, corporate, data protection and G P , education, employment, maritime, professional indemnity, property and public law. The firm works with a number of large public sector organisations, advising clients such as the Health Service Executive (HSE), Tusla - the Child and Family Agency and Transport Infrastructure Ireland (TII).

Pictured at the Dublin office of Comyn Kelleher Tobin (CKT) are Daniel McLoughlin, Nicola Kiely, Claire Cregan, David Hickey and Debbie Moore

With effect from 24th September 2018, the abour Court will publish on its website a weekly programme of employment rights hearings. In addition to the date, time, venue and location, practitioners should note that the weekly programme will name the parties involved in each hearing and the legislation under which the hearing is being held.

Notary Public Graduates S A council members oan oran and Susan Martin with Chief ustice Frank Clarke at the otary Public graduation ceremony at the aw Society on 29th une 2018.

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News

DWF Celebrates Growth and Expansion The ublin office of international legal business WF is celebrating a five year presence in Ireland plus the expansion of its high calibre team which now includes more than 50 people. Significant deals led by WF Ireland over the last year include advising the US digital media company, Irish Studio, on the acquisition of six consumer maga ines from publishing house Harmonia, advising Erris esources on its admission to AIM and advising Capital Stage AG (Encavis) on its partnership with the Ireland Strategic Investment Fund to invest in a 140 MW portfolio of solar P projects. Speaking at a celebratory event for clients and stakeholders at the ational Gallery, oss ittle, executive partner of WF Ireland said “Ireland is a vibrant and very important economy on the global stage and WF’s continued growth confirms our long-term commitment to the Irish market. This five-year period of sustained growth and activity is a significant milestone for WF Ireland. We are busy and constantly winning new high quality legal work. Indeed, the growth of WF on the island of Ireland re ects the international growth model for WF and the hard work of all our team. The success of our Ireland offering confirms our decision to commit resources to ublin and elfast to build a sustainable and recognised legal business.”

Pictured at a recent celebratory event for clients and stakeholders at the National Gallery: DWF Dublin partners, Louis Burke; banking partner, Nina Gaston; litigation partner, Michael Neary; head of real estate, Lorna McAuliffe; commercial litigation partner, Ross Little; executive partner, Eimear Collins; litigation partner, Garrett Monaghan, corporate partner

Maloney elected at American Association for Justice

New Judges The Parchment extends its very best wishes and congratulations to ames McCourt and Michael uinn. ames, a former President of the S A and former partner at O’Mara Geraghty McCourt Solicitors was appointed a udge of the Circuit Court. Michael uinn is a former partner at William Fry and was appointed a udge of the High Court. We wish them a long and fulfilling career on the bench. 54 the Parchment

Travel law expert iam Moloney has been elected Chairman of the International Practice Section of the American Association for ustice (AA ). The AA Association is the world’s largest association of personal injury lawyers and has over 23,000 members worldwide. It works internationally to improve and develop individual countries legal procedures and systems to promote justice and fairness for injured people and safeguard victims’ rights. Mr Moloney is the principal of Moloney Co Solicitors who have offices in ublin and aas, Co Kildare. He is one of the few Irish solicitors who specialise in representing people injured whilst abroad, travelling on airplanes, ships, boats, and trains. Mr Moloney is a member of the oard of Governors of the American Association for ustice (AA ), is a board member of the Pan-

European Organisational Personal Injury awyers (PEOPI ) and is a member of the Travel Tourism awyers Association (TAT A).


Autumn 2018 dsba.ie

News

Beyond the Border by Mr Justice Humphreys It is no exaggeration that rexit is the single greatest challenge facing these islands and the continent of Europe since the Second World War. That the most significant land border should be that between the epublic of Ireland and orthern Ireland, draws into focus even more the special relationship between the orth and South of Ireland, which is underpinned by international legal treaty known as the Good Friday or elfast Agreement. ritain’s planned withdrawal from the EU has put the constitutional future of orthern Ireland centre-stage once again and, as Westminster and russels struggle to find a way forward, a friction-less frontier seems an impossible conundrum. Beyond the Border The oo ri a Agreement an rish nit after Brexit is an authoritative and timely guide to the provisions of the Good Friday Agreement relating to Irish unification by ichard Humphreys, udge of the Irish High Court. Beyond the Border is a compelling and accessible exploration of how the Agreement

can be upheld despite rexit uncertainties, and implemented despite political deadlock. It powerfully argues for the permanence of the Agreement and its cross-community approach, even in the event of the achievement of Irish unity. Humphreys explores the realities and possibilities in the post- rexit future and shows how • Stormont and the six-county entity are permanent features under the Agreement, not simply transitional institutions that disappear following a unity vote. Thus, I is to an extent ritish in perpetuity and the border will exist in perpetuity, although after unity it would be an internal border to a separate legal system and governance system within a wider United Ireland. • rexit poses unique challenges to the gains of the Agreement, although the Agreement itself provides mechanisms for orth/South and East/West co-operation that could help provide solutions. • The parity of esteem and rights commitments mean that some language

Book Review legislation is inevitable if the Agreement is to be complied with. • Those rights commitments also require that expressly anti-Catholic Westminster legislation should to be repealed. Mr ustice Humphreys deserves immense credit for his detailed analysis, sharp insight and authoritative overview. This is a must read’ for those who wish to greater understand the complexities and legal issues pertaining to Irish unity after rexit. The timing of the book could not be better. It is published by Merrion Press and retails at €19.99.

‘Slips’ – Clerical Mistakes in Judgments or Rrders or Errors Arising Therein from any Accidental Slip or Omission Made Easier to Correct Following Change to Circuit Court Rules in S.I. 64 of 2018 From 3rd March 2018 Order 65 of the Circuit Court ules was amended to make it easier to correct slips’ in the Circuit Court.

Original Wording of Order 65(3)

Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the udge or the County egistrar as appropriate on motion on notice to the party sought to be affected by such correction.

New Wording of Order 65(3)

Clerical mistakes in judgments or orders, or

errors arising therein from any accidental slip or omission, may at any time be corrected without an appeal (a) where the parties consent, and with the approval of the udge in the case of a judgment or order of the Court, by the County egistrar, (i) on the application to the County egistrar in writing of any party, to which a letter of consent to the correction from each other party shall be attached or (ii) on receipt by the County egistrar of letters of consent from each party or (b) where the parties do not consent, by

the Court (in the case of a judgment or order of the Court), or by the County egistrar (in the case of an order of the County egistrar) (i) on application made to the Court or, as the case may be, the County egistrar, by motion on notice to the other party or (ii) on the listing of the proceeding before the Court by the County egistrar on notice to each party.” eith Walsh practices in the area o amil la an is a mem er o the irc it o rt R les ommittee the Parchment 55


DSBA Employment Law Seminar

The DSBA Employment Law Committee hosted a CPD seminar on 12th July 2018. The seminar dealt with recent developments, a review of employer’s liability for sexual harassment and taxation of employment awards. The speakers were Mary Paula Guinness, BL; Des Ryan, BL; and Sanda Meade.

Photography: Michael Finn

Left to right: Speakers Ciara O’Kennedy (Chair); Sandra Meade; Des Ryan; Mary Paula Guinness

Left: John M Bourke, Bourke & Co; Mary Gavin, Hayes Far left: Richard Grogan, Richard Grogan & Associates; Paula Quinn, Reddy Charlton; Laura Graham, Reddy Charlton

Right: Redmond Arigho, LK Shields; Roisin Lawler, LK Shields Far right: Denise Moran, A & L Goodbody; Ailbhe Dennehy, A & L Goodbody; Clodagh Hogan, A & L Goodbody

Left: Lyndsey Noonan, CQS; Donal Holohan, Maguire McClafferty Far left: Laura Reid, Beauchamps; Alison Martin, Beauchamps

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Autumn 2018 dsba.ie Photography: Michael Finn

Left to right: Speakers, Aine Quigley; Michelle Linnane; Rita Considine; Angela McCann; Susan Martin

DSBA Litigation and Property Seminar

The DSBA Litigation and Property Committees hosted a CPD seminar on 19th July 2018. The seminar was entitled Landlord and Tenant – Leases and Litigation. Dublin County Registrar Rita Considine chaired the event. The speakers were Angela McCann, A. McCann & Co; Michelle Linnane, consultant; Susan Martin, Martin Solicitors; Aine Quigley, Mason Hayes and Curran.

Left: Maureen Synnott, DCC; Cliona Collins, DCC; Jane O’Halloran, DLR Far left: Michelle Linnane, Michelle Linnane Solicitors; Owen O’Sullivan, Owen O’Sullivan Solicitors

Right: Stan Murray, Murrays; Elizabeth Ward, Elizabeth Ward Solicitors; Mark O’Callaghan, CCK Law Firm Far right: Bob Walsh, McGovern Walsh; Jill Lee, Lee Solicitors

Left: Angela McCann, speaker; David Murphy, Corrigan & Corrigan Far left: Susan Martin, speaker; Fintan O’Reilly, Fintan O’Reilly & Co

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DSBA Annual Conference Business Sessions

Photography: Marco Gaggio

The DSBA held a very successful annual conference in Venice, Italy from 21st -23rd September. The Business Sessions/ CPD were well attended with a variety of legal topics covered and discussed.

Above: Michael Mulcahy, SC; Joan Doran, Niall Cawley, DSBA President, Robert Ryan Left: Tony O’Sullivan, Diego Gallagher Far left: Mark Ryan, James Flynn, Kyran McGinley

Right: Elizabeth Lacy, Geraldine Madigan Far right: David Bergin, Tim Shannon, President of the Law Society, Michael Quinlan

Left: Margaret McGinley; Sandra McTurk, BL; Catherine White, BL and Laura Flynn Far left: DSBA President Robert Ryan, Tommaso Bortoluzzi, Tiziana Ceschin

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Autumn 2018 dsba.ie

DSBA Annual Conference Gala Dinner

Left to right: John Branigan; Judge Dermot Simms; Susan Lennox, BL; Judge Geraldine Carthy; Clare Feddis

The DSBA held a very successful annual conference in Venice, Italy from 21st – 23rd September 2018, attended by 110+ delegates and guests. This included on the Friday a CPD seminar held in the offices of the Venice Bar Association, chaired by DSBA President Robert Ryan and with Michael Mulcahy, SC, Joan Doran and Niall Cawley as the speakers. The conference concluded on the Saturday with its marquee event, a gala dinner held in the 17th Century Palace called the Casino overlooking the Grand Canal in Venice. An address was given at the dinner by DSBA President Robert Ryan, Law Society President Michael Quinlan, Tomasso Bortoluzzi Vice President VBA, as well as DSBA Vice President Greg Ryan and Colette O’Malley, the event co-ordinator. Left: Ken Byrne, Greg Ryan, Joe Clancy Far left: Fabina Danesin, Tommasso Bortoluzzi

Right: Nora McCarthy, Deirdre Walsh, Rosemary Kearon, Liz Dowling, Maura Derivan Far right: Elaine Given, Kerry Graham, Claire Downes

Left: Robert Ryan, Colette O’Malley Far left: Mary McCarthy, Fiona Kerins BL, Marion Campbell, Morette Kinsella

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50+ years in Practice

Photography: Michael Finn

A lunch was hosted by the DSBA in honour of Dublin solicitors who are 50 years (or more) in practice on 5th October 2018 at the RDS. There was a large attendance to mark this very special annual occasion.

Above: Brian Gartlan; Anthony Kirwan; Rose Mary Kirwan; Avice Harrington; Robert Ryan; Valerie Casey; Aveen Bonner; Francis Malone; James Heaney; Brian Woodcock Left: Aveen Bonner; Andrew Smyth Far left: Fintan Clancy; Tommy O’Reilly

Right: Avice Harrington; Valerie Casey Far right: Gerard Gannon; Joan Doran

Left: Vivian Matthews; Michael V O’Mahony Far left: Valerie Casey; James Mackey

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Autumn 2018 dsba.ie

Above: Brian Magee; Barry Magee; Mary Tighe Above right: Frank Malone; Bernie Malone; Michael O’Shea; Pat O’Brien RIght: Paul Guinness; John Fish

Left: Charlie Coonan; James Cawley Far left: Donnchadh Lehane; Laurence Farrell

Right: John Rochford; Áilin Doyle Far right: Ruadhan Killeen; Maire Cunneen

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DSBA Golf Society

The DSBA Golf Society held its Captain’s Prize outing at the Hermitage Golf Club, Lucan on 30th August 2018. A most enjoyable day was had by all.

Photography: Michael Finn

Left: Eamonn Shannon; Michael Knightly; Ken Knightly; Conor Canavan

Left: Gavin McAlinden Far left: Former DSBA President Hugh O’Neill tees off. Graziano Romeri and Pat Coady also in frame

Right: Tom Collins; Mary McAlinden; James Malone Far right: Bob Connolly; John Synnott; Sean McDonnell

Left: Graziano Romeri; Hugh O’Neill; Pat Coady Far left: Judge James McCourt; Richard Bennett

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Autumn 2018 dsba.ie

Left: Andrew O’Rourke; Stephen McGuinness; Mark Collins; Joe O’Malley Far left: Richard Bennett

Right: Shea Cullen; Judge James McCourt; Richard Bennett; Garret Lally Far right: Ollie Shannon; Vincent Shannon; Rob Shannon

Left: Joe O’Malley, Andrew O’Rourke Far left: Paul Murran; Michael Campion; Stephen Fleming

Right: Gavin McAlinden; Maureen Collins; Pat Judge Far right: Paddy Groarke; David Tansey; Paul O’Reily

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Closing Argument Kevin Walsh

Keith Walsh is a former President of the DSBA and former Editor of the Parchment. He is Chair of the Child and Family Law Committee of the Law Society

Even the most cursory glance at the current family law courts in Dublin will tell you that it is a system in crisis

Family Law and the Vicious Circle

T

his is a closing argument borne out of the frustration of four years of watching and lobbying for the proposed new one stop shop court building for family law in Dublin Hammond ane to go ahead. Everyone agrees new court facilities for family law in ublin are long overdue the judiciary, S A, ar Council, aw Society, Family awyers Association, egal Aid oard, victims groups, the court users, the Courts Service and successive Ministers for ustice to whom many submissions have been made by stakeholders. ut no real progress has been made. Even the most cursory glance at the current family law courts in Dublin will tell you that it is a system in crisis. For a start the buildings which currently house the childcare courts are located in 19th century courts at Chancery Street which were built to deal with criminals. I spoke to a well known solicitor recently who told me they practiced there 30 years ago and the courts were still the same. They thought this was fine I misunderstood them to mean it was outrageous, which it is. Most solicitors have been to the ridewell Courts over the years and anyone still alive who ever had a case there considered them a relic of the 19th century. It is astonishing to think that they are still in use never mind as childcare courts. olphin House which deals with istrict Court private law matters such as access, custody, guardianship, maintenance etc. is overcrowded and no longer fit for purpose. The solution to the problem the proposed 64 the Parchment

new building at Hammond ane on Church St. remains a derelict site almost four years after the then Chief ustice and the then Minister for ustice announced the project. Minister Fit gerald stated eloquently in ecember 2014 I am fully aware of the need to develop suitable and appropriate facilities in regard to family law cases. Families are at their most vulnerable when they are seeking many of the services that are available to them in dealing with their situation. I fully support the plans to centralise all family law business, including mediation and legal aid services in ublin, and that the planned facilities at this site would comply with modern standards for court accommodation and would, most importantly, meet the needs of its clients who come to court at a difficult time.� In une 2018 the current Minister for ustice Charles Flanagan announced that an updated project appraisal and business case with revised costings was submitted to the department recently. It is being actively considered, and in due course, if it is approved, it will also require sanction from epartment of Public Expenditure and eform,� He went on to say that he intended to advance the project. While things were bad in the family law courts in 2014, they got considerably worse following the commencement of part of the Child and Family elationships Act 2015 on 1st anuary 2016 which introduced a welcome host of rights for parents and those in loco parentis and relations of children. The Act also made it mandatory for courts

to ensure that they heard the voice of the child in certain proceedings and also that the welfare of the child was to be paramount. This significantly increased the work involved in istrict Court cases in particular and increased the number of times a case would be listed in court before it could be dealt with by a judge. It also involved a more detailed examination of the voice of the child and how their welfare was being considered. o resources whatsoever were allocated alongside the introduction of the Act which meant that the family law District Court has been put under increasing pressure without the benefit of experts who can be appointed by the courts as many litigants appearing cannot afford to pay for a private expert. The family law courts in ublin are now caught in a vicious circle unfit premises, increased workloads, lack of resources, no significant improvement or change to the current courthouses in olphin House and Chancery Street is likely to be made as the Hammond ane project is pending but there are no visible signs of progress and we know there are two further hurdles to be jumped as outlined by the Minister in une (approval from ustice and then from Public Expenditure and eform). In the meantime, litigants in the family courts, court staff, judiciary, witnesses and lawyers will continue to attend ill suited, inappropriate and unfit premises in ublin to deal with cases at a time when families are at their most vulnerable’. Surely in 2018 we can do better than this

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Parchment - Autumn 2018  

Parchment - Autumn 2018  

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