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D UB LIN SOLICITORS B AR ASSOCIATION MAGAZ INE | AUTUMN 2020 | ISSU E 85

SENIOR COUNSEL 17 solicitors appointed in groundbreaking development

MINISTER OF STATE THOMAS BYRNE TD INTERVIEWED THE ARGUMENT FOR RETENTION OF JURIES IN DEFAMATION CASES


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Autumn 2020 dsba.ie

From the Editor

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elcome to the autumn edition of the Parchment. It has been a year of very mixed fortunes for colleagues and clients as we appear to be facing another lockdown. Just when businesses were beginning to get back up off their knees, the dreaded virus spreads like wildfire across the country plunging the nation into disruption, fear and worry. As a profession, we are resilient and strong. et this virus can knock us off our feet in one foul swoop. Staff working in solicitors offices right across the country deserve particular praise for their hard work and dedication – especially through the earlier part of the year and for their exibility in adapting to work from home. In this edition of the Parchment we interview two well known personalities – inster of State for uropean Affairs Thomas yrne T. . and Law Society eputy irector eneral ary eane. oth provide interesting insights into their lives and careers and it is a particular honour for the Parchment to have interviewed

inister Thomas yrne – a former solicitor himself. The annual renewal of professional indemnity insurance has come around again. In an article on pages 24-2 , the S A Taskforce on professional indemnity insurance provides some important advices on the upcoming renewal process. Our lead story celebrates the appointment of 17 solicitors as Senior Counsel – a groundbreaking and seminal elevation for our colleagues who have pushed open doors that were firmly shut to solicitors for the past 400 hundred years. We congratulate all 17 on this recognition of their achievements. We also have an array of other legal articles in this edition for you to savour. Stay safe, stay healthy, stay well.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2019/2020

TONY O’SULLIVAN DSBA President

JOSEPH O’MALLEY DSBA Vice President

DIEGO GALLAGHER Honorary Secretary

MATTHEW KENNY Treasurer

SUSAN MARTIN Programmes Director

NIALL CAWLEY Chair of Practice Management Committee

LAURA HORAN

PAUL RYAN Chair of Commercial Law Committee

JOAN DORAN Chair of Mental Health & Capacity Committee

KILLIAN O’REILLY Chair of Litigation Committee

RONAN McLOUGHLIN Chair of Property Law Committee

CIARA O’KENNEDY Chair of Employment Law Committee

GERARD O’CONNELL Chair of the Parchment Committee

AVRIL MANGAN Chair of Family Law & Minors Committee

TOM O’DWYER

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

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the Parchment 1


Autumn 2020

Contents 6

Solicitor Senior Counsel – a Game Changer? Kevin O’Higgins tracked down our celebrated colleagues to understand why they seized the opportunity to make legal history

12

Rebecca MacCann takes a closer look at this major change

Timing is Everything

20

Law Society Elections

24

Advices on Professional Indemnity Renewal

Newly appointed Minister of State for European Affairs, Thomas Byrne, explains to Killian Morris how success, in his legal and political career, has been down to a mixture of hard work and good fortune

We profile all the Dublin candidates running in this month’s elections. Make sure you vote!

The Professional Indemnity Insurance Taskforce of the DSBA sets out some advices on the upcoming renewal process

28

Hail Mary!

32

Proposed Family Law Reform

Julie Doyle chats to Deputy Director General of the Law Society Mary Keane

Keith Walsh provides a brief overview on Family Law Justice System Reforms recently announced

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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page 14

TIMING IS EVERYTHING THOMAS BYRNE TD

New Oaths and Affirmations System

14

The rise of populism is an issue. Sinn Féin are avowedly populist. They maintain they are left wing populists rather than right wing populists but I think it is pretty similar

14


Autumn 2020 dsba.ie

Contents

REGULAR FEATURES 01 04 59 62 64

Editor’s Note President’s Message In Practice News Closing Argument

28 36

Retain Juries in Defamation Cases Karyn Harty explains why defamation cases still need juries

38

Game On – new Gaming Laws on the Way Rob Corbet and Caoimhe Stafford consider some of the key changes that will be brought about when the Gaming and Lotteries (Amendment) Act 2019 Act enters into force on the 1st December 2020

42

Winds of Change

48

Significant Security for Costs Decision

52

District Court Debt Collection

Brendan O’Connell says a recent Court of Appeal Judgment is significant in the context of Personal Injury Litigation

38

Angela Brennan examines a recent Court of Appeal decision regarding security for costs

Susan Martin sets out the steps involved in testing and enforcing a debt in the District Court

42 the Parchment 3


Message from the President

Farewell

O

ne of the themes of my presidential year was the Rule of Law and the DSBA’s commitment to advocate for opportunities for all regardless of race, gender, nationality, sexual orientation, abilities, wealth and educational background or any other point of human difference. The death of Justice Ruth Bader Ginsburg is a blow to the cause of e uality. Humanity has lost one of its brightest, fiercest advocates for a more e uitable world. ustice insburg was an icon for the ages. As a law professor, litigator, federal judge, and Associate ustice of the .S. Supreme Court, she was a trailbla er and so much more. She was a shining beacon of hope, a staunch defender of the equal rights of women and girls, and a steadfast fighter for America s promise of liberty and ustice for all. As an attorney, she led the fight to grant women e ual rights under the law. As a udge, she did ustice every day – working to ensure that America’s legal system lives up to its ideals and extends its rights and protections to those once excluded. In both roles, she held to – indeed, exceeded – the highest standards of legal craft. er work was as careful as it was creative, as disciplined, as it was visionary. It will endure for as long as Americans retain their commitment to law. Amy Coney arrett has been nominated by US president Donald Trump to replace Ruth ader insburg on the Supreme Court, paving the way for what, at time of writing, promises to be a contentious confirmation hearing in the Senate just weeks before the S presidential election. Barrett is a successful working mother but her individual success does not make her some kind of feminist superhero. A devout Catholic, she has been a favourite of anti-abortion conservatives who hope that a conservative majority on the bench will eventually result in a challenge to the 1973 Roe v. ade ruling that introduced the right to abortion. uality is not about any one woman’s success; it is about all women being freed from discrimination and oppression: not just professional white women, but trans women, gay women, poor women, immigrant women, black and brown women. The DSBA has a great heart, and that heart comes from those who serve. I am proud of our Council. I am proud of all the members who have served the DSBA in my presidential year. I am proud of our S A staff. e have no doubt done some things wrong, but I want to say one thing: we can be proud of this year and how we came

4 the Parchment

together to deal with Covid. hen something does not go the right way, when someone dear to us dies, when we suffer a defeat – in these type of situations, we think all is ended. Similarly when we enter lockdown, we think there is no way out. Not true. It is only a beginning, always. To uote an American President who didn’t get to complete all he wanted to do in his term, It must always sustain us, because the greatness comes not when things go always good for you, but the greatness comes and you are really tested, when you take some knocks, some disappointments, when sadness comes, because only if you have been in the deepest valley can you ever know how magnificent it is to be on the highest mountain . I leave with optimism and positivity, in good spirit, and with deep humility, and with very much gratefulness in my heart. As I recall the high expectations for the S A with which I began my term and the unbelievable success of the first six months, I feel a sadness that I will not be here in this office working on your behalf to achieve those expectations next year in order to see Covid through to its inexorable conclusion. Nonetheless, in turning over direction of the S A to my ice President oe alley, I know that the leadership of the DSBA will be in good hands. In passing this office to oe, I also do so with the profound sense of the weight of responsibility that will fall on his shoulders

and, therefore, of the understanding, the patience, the cooperation he will need from all S A members. As he assumes that responsibility, he will deserve the help and the support of all of us. As I look to the future, the first essential is to begin to rediscover those shared ideals that lie at the heart of our strength and unity as a great organisation. To those who have stood with us during these past difficult months, to my family, my friends, my work colleagues in Beauchamps, to many others who oined in supporting us, I will be eternally grateful for your support. I shall leave this office with regret at not completing my full programme in particular the annual olden ldies dinner (Stay Safe ), but with gratitude for the privilege of serving as your President. The past year has been a momentous time in the history of our country and the world. It has been a time of achievement in which we can all be proud, achievements that represent the shared efforts of the S A, the Council, and our members. The challenges ahead are great, and they, too, will re uire the support and the efforts of our members working in cooperation with the new President and his Council. Please continue to listen to the advice of the S , our overnment and trusted news sources. Please take appropriate precautions for your staff, your family but also yourself. Rath Dé oraibh go léir agus go deo Tony O’Sullivan, DSBA President


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Solicitor Senior Counsel – A GAME CHANGER? Kevin O’Higgins tracked down our celebrated colleagues to understand why they seized the opportunity to make legal history

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hen then Minister for Justice Alan Shatter set about (allegedly in his kitchen) drafting the Legal Services Bill in or around 2012 very few would have expected that among its radical proposals would be an enabling provision entitling solicitors to apply for the so-called grant of precedence or Senior Counsel. is detractors (allegedly from the ar) ridiculed the provision and styled it as self promotion for the former solicitor’s ambitions after politics to apply for and become the first Solicitor Senior Counsel. It is fair also to acknowledge that such a provision was not something on the Law Society wish list and so when it emerged in the Bill it was a welcome surprise. Yet, one wondered what, if any, take up there might be for it. For decades we had seen our branch of the profession overlooked for udicial appointments – particularly in the Superior Courts and statistically very few solicitors were applying. This is changing and for sure, the emergence of the Solicitor Senior Counsel brand will herald a more confident profession, imbuing a new found equality of esteem between the Bar and ourselves and the clients for whom we serve. A clear recognition that, while we offer something different to the ar, we also offer excellence. Yet the brave 47 or so of our colleagues who applied for the position of Senior Counsel would have had a pretty high octane uly of 2 2 with the cut-off for applications at the end of that month. For the application process and completion of the application form is not for the faint hearted. One of the questions alone posits:

6 the Parchment

Please give a brief description of your current legal role, including an overview of the main types of cases you have been involved in over the past 5 years, the percentage breakdown identifying courts and urisdictions e.g. Irish Supreme Court , Irish Court of ppeal , Irish igh Court and EC and any specialisms. Please list below a minimum of to a ma imum of reported cases in which you have been involved recently. And without question there is nowhere to hide, as each applicant has to bear their soul, but more particularly, back it up with vouched corroborative material of proven excellence in their particular sphere. One such application ran to a thousand pages. So hats off to all those who applied and for the 1 of our colleagues who, on this occasion, were successful. As the President of the Law Society ichele oyle remarked: This is a significant moment in Ireland’s legal history. I warmly congratulate each colleague who has been deemed to demonstrate the standard of excellence required which entitles the solicitor to use the designation senior counsel. It is an important achievement, both for the individual solicitors and for the profession as a whole.” The 17 who had a fretful Summer were Éamonn Conlon, Paul Egan, Patrick Groarke, Richard Hammond, Bill Holohan, Áine Hynes, Liam Kennedy, Rory Kirrane, Cormac Little, James MacGuill, Roger Murray, Helen Noble, Bernard O’Connor, Vincent Power, Dara Robinson, Michael Staines and Damien M.P. Tansey. Six of the solicitors work for some of Ireland’s biggest law firms – Éamonn Conlon, Liam ennedy and incent Power are partners at A L oodbody, Rory irrane


Autumn 2020 dsba.ie Kevin O’Higgins is principal of Kevin O’Higgins Solicitors. He is a former President of both the Law Society and the DSBA. He is a former editor of the Parchment

News

Áine Hynes

Helen Noble

Richard Hammond

Patrick Groarke

Bill Holohan

Paul Egan

Rory Kirrane

Dara Robinson

Michael Staines

Damien Tansey

Vincent Power

Cormac Little

Liam Kennedy

and Paul Egan are senior partner and of counsel respectively at ason ayes Curran LLP, and Cormac Little is a partner at illiam Fry and ead of Competition Regulation. ut it s not ust the large offices. Take elen Noble, for example, a sole practitioner in Arklow with a specialism in Maritime and Transport Law. Richard ammond, a well known Co Cork based succession law specialist while Roger urray and amien Tansey are Roscommon and Sligo based litigators and experts in the medical negligence spheres. ara Robinson and ichael Staines are among the foremost criminal law practitioners in the country. So I thought I would have a word with as many of them as I could and put a few burning questions to them. Most of them were able to come back to me but as our publication deadline was tight I haven’t caught up with them all. This is what they say:

1. What were the factors that motivated you to apply for the title of Senior Counsel? Áine Hynes I have endeavoured to apply an approach of continuous improvement in my practice as a solicitor. I have also always loved a challenge – most of my holidays are spent rock climbing and scaling mountains. This first opportunity for solicitors to apply for Senior Counsel was just such a challenge and I was delighted to apply. It is vital that female solicitors feel just as empowered to take on challenges as their male colleagues – I have been a mentor on the Law Society

omen In Leadership Programme for many years. I m delighted to be among the first women solicitors to use the title Senior Counsel and humbled that the Advisory Committee; comprised of the Chief Justice, Presidents of the Court of Appeal, the igh Court, the Attorney eneral, representatives from the Law Society, the ar Council and the public; have recommended me for this Patent of Precedence.

Helen Noble I have practised in maritime law for over 25 years and the title of Senior Counsel to me was the ultimate recognition that I am a senior lawyer in this field.

Richard Hammond hen the call for applications was issued, I was contacted by a number of colleagues, both solicitors and barristers, encouraging me to apply. As solicitors we are often told that the reason there are fewer solicitors appointed to the High Court and Court of Appeal, is because not enough solicitors apply. I decided that whether successful or not, I did not want to be hearing the same refrain in relation to Senior Counsel.

It is vital that female solicitors feel just as empowered to take on challenges as their male colleagues

Patrick Groarke The main factor was undoubtedly the fact that this was the first occasion upon which solicitors could apply for a rant of a Patent of Precedence. To be successful, the applicant had to show established skills in advocacy and/or proven areas of speciality. the Parchment 7


The granting of a Patent of Precedence to solicitors recognises the very high professional standards achieved by solicitors and the important role which they play in the legal profession

To be amongst the first tranche of solicitors whose applications were successful is a very special experience. The granting of a Patent of Precedence to solicitors recognises the very high professional standards achieved by solicitors and the important role which they play in the legal profession.

it sounded very worthwhile. Indeed, given the work that the Law Society, the irector eneral and various Presidents had done to get the opportunity, it would be a shame if there were not many applicants.

Bill Holohan

I have specialised in company law and securities law and their application to corporate transactions for more than 30 years. I saw the Patent of Precedence as an opportunity for validation of that specialisation.

In June, I learnt through the Law Society a ette and the press that the relevant provisions of the Legal Services Regulation Act 2 15 had been brought into force and that an Advisory Committee had been established. I then reviewed the application form for a Patent of Precedence (available on the LSRAs website) and saw that my professional activities and experience was responsive. hile it was a step into the unknown, I decided to put myself forward for consideration.

Rory Kirrane

Liam Kennedy

The fact that there would be recognition of the fact that solicitors are every bit as expert and knowledgeable as barristers.

Paul Egan

Over the last 15 years as I developed a practice in the construction and energy sectors, advocacy in arbitration and A R (alternative dispute resolution) has been a significant feature. That, and the specialism in those areas, prompted my application.

Dara Robinson I was encouraged to apply by people close to me in part as recognition of many years of legal practice at a very high level and in part as another significant accolade for the firm where I spent most of my working life.

Michael Staines I have always believed that solicitors can achieve the same level of competence as their barrister colleagues. They pass the same examinations in college and must pass professional examinations that are at least as tough as those for barristers. I have always contended and stated my belief to anybody who would listen, that there was no logical reason why solicitors should be prevented from becoming Senior Counsel. hen the opportunity arose, I had no hesitation in applying.

Damien Tansey This was a unique and historic opportunity for solicitors. Never before were solicitors eligible to be appointed Senior Counsel. Though I am 40 years in practice this year, I remain ambitious and hungry for advancement and progress within Damien Tansey Solicitors. nly this week we opened a new office at 4 erbert Street, ublin. I felt that having the firm s Senior Partner a Senior Counsel would be a significant advantage in that endeavour. Almost all of my experience has been in the area of Litigation, most especially in the complex field of edical Negligence. uring that time, and through the medium of the thousands of cases I have pursued in all of the Courts from the District up to the Supreme Court, I have a proven track record in Advocacy and Litigation. iven the said experience, I felt I was well ualified to become a Senior Counsel.

Vincent Power I was aware that solicitors could now apply after 300 years but I had no plans to do so. However, a friend nudged me and when I chatted with some other friends, 8 the Parchment

Cormac Little

I was involved in the Law Society s task force dealing with key issues in the LSRA Act, including the introduction of LLPs. The Act allowed solicitors to become senior counsel for the first time. Since the Law Society had campaigned for this over the years, it was important that solicitors should avail of the opportunity.

2. Was your application based on established advocacy or a proven specialism? If advocacy based do you intend, in your practice, to bring that to a level on a par with the Bar? Ă ine Hynes I have had the great privilege in assisting vulnerable clients in my practice as a solicitor and have developed a specialism in Mental Health and Capacity law. This formed the basis of my application.

Helen Noble Proven Specialism.

Richard Hammond I describe myself as a succession law enthusiast and whilst I have on many occasions undertaken my own advocacy in the High Court, my application was based on my specialist knowledge in the area of succession law. If any solicitor is appointed on the basis of advocacy, then such appointment will show that they are already on a level with advocates in the other branch of the legal profession.

Patrick Groarke My application was based on both established advocacy and proven specialism. I will continue to advocate in those areas in which I believe I have a proven specialism. I do not see myself as being in competition with the Bar.

Bill Holohan hile I have argued cases myself in every court up to the Supreme Court (the Court of Appeal excepted) it was not on the basis of advocacy alone that I applied. The 2015 Act allows for application on the basis of:


Autumn 2020 dsba.ie

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i competence and probity , ii professional independence, and iii one or more of the following I a proven capacity for e cellence in the practice of advocacy; II a proven capacity for e cellence in the practice of specialist litigation; or III specialist knowledge of an area of law ” I applied on the basis of ticking all the boxes and the Advisory Committee recommended my appointment on the basis of having "demonstrated compelling evidence of excellence".

Paul Egan My application was based on my specialisation in company law and securities law.

Rory Kirrane It was based on specialism in construction law, advocacy, and also specialist construction litigation. I practise both contentious and non-contentious construction and energy law. Advocacy – often against members of the ar - is an important area which I intend to develop further, certainly in arbitration and adjudication at present. The Bar provides an important and skilled service to clients with respect to advocacy in Court, and is set up to do so.

Council from constructing a landfill dump within 1 metres of the famous Neolithic Tombs at Carrowmore, the Plaintiffs having failed initially before c illiam J. in the High Court. The case itself is notable as an example of one where local residents took on the Council to stop a manifest departure from the terms of the Council s own evelopment Plan and the effective desecration of a ma or National onument. hile the case is notable as illustrating the importance of the evelopment Plan as being in effect a type of Planning Contract between the Local Authority and the community, it was also in a sense one of the first examples of nvironmental Litigation of a kind which, at the time, was almost non-existent.

Vincent Power n the first uestion, I have undertaken some advocacy before EU and national institutions but the application was primarily specialisms-based. n the second question, it is important to recognise that there are expert advocates at the Bar and the conferring of a title is not going to automatically change that. Everyone in the profession has different skills and I will continue instructing advocates and experts at the Bar.

Áine Hynes SC – at the top of her profession

Dara Robinson Although I have many years’ experience of advocacy, in recent times I have withdrawn from that activity and the younger members of my firm have taken over. I have instead focused on advice and preparation in relation to generally more serious matters. The best advocates at the Bar have been on their feet regularly in the highest Courts for decades and I don’t think at this stage of my career that I can realistically aspire to that outstanding level of advocacy.

Michael Staines My application was based on the fact that I have been an established criminal law solicitor and advocate for 40 years and the fact that I have specialised in both Criminal and Regulatory Law. I have also practised as an advocate in other areas when necessary. I will continue to be both an advocate and an advisor in those fields in the future and I will continue to appear before all Tribunals, just as a Barrister would.

Damien Tansey My application was based on my proven track record in Advocacy and Litigation, particularly in the highly specialised area of Medical Malpractice. On many occasions during my professional life, because of a fearless and independent streak in my makeup, I have brought major claims against large institutions or other powerful interests; I have also acted for those who would otherwise have had little prospect of gaining access to justice. I was the architect of the seminal case of Attorney eneral ( c arry) -v- Sligo County Council 1991 1 IR 99 . In this case the Supreme Court granted an Order restraining Sligo County the Parchment 9


Cormac Little My application was based on a specialist knowledge of EU law focusing on merger control, competition, State aid, public procurement, general and regulatory law and A L CFT rules.

Even within the Bar, whilst advocacy is core, a Senior Counsel is someone with experience and expertise who may be relied upon for good guidance

Liam Kennedy y application was primarily specialism-based, re ecting my experience and expertise in large scale commercial litigation, including international litigation. I don t see the title as changing my recourse to the ar. Like other litigation solicitors, I would frequently brief barristers, and I will continue to rely on their expertise in many areas, especially advocacy. e all have different skills and I will still rely on the ar (and other solicitors) as appropriate.

3. What differences do you think it might mean for you in practice? Áine Hynes As solicitor senior counsel are not called to the inner bar, I do not anticipate any significant changes in my practice or to my firm. I gave very strong consideration to this issue prior to applying.

Helen Noble For my clients it is a recognition that they are engaging one of the foremost and senior solicitors in the field of maritime and transport law in Ireland. I believe it will result in increased business particularly as an expert within this field.

Richard Hammond Perhaps the most denigrating question that can be, and is often, asked of a solicitor is “would you not consider going on to be a barrister?” I always respond with “that is like asking a doctor would she not consider going on to be a dentist!” Opening up the status of Senior Counsel to solicitors is undoubtedly a positive development. Even within the Bar, whilst advocacy is core, a Senior Counsel is someone with experience and expertise who may be relied upon for good guidance. Now solicitors about whom that can be said, have a means of demonstrating the attainment of those traits. e will have to wait and see what difference, if any, that makes in practice; though I anticipate that it will help promote the succession law consultancy work that I undertake for other solicitors.

Patrick Groarke Probably none.

Bill Holohan It has already led to a few requests for expert opinions, presumably on the basis that the opinions look better when they end with the magic words Solicitor and Senior Counsel”. It has also led to a few more requests for me to act as a mediator and arbitrator.

Paul Egan It provides some extra incentive and reassurance to those who might instruct me, particularly in opinion work. I have for some years been instructed to provide opinions by other solicitors. Solicitors who might seek a (barrister) Senior Counsel s opinion on knotty legal 10 the Parchment

issues now know that there are solicitor Senior Counsel with specialised competence in particular areas.

Rory Kirrane The role of solicitor Senior Counsel is in development and to some extent it will be what practitioners make of it. The role will increase my concentration on the higher value and more complex work.

Dara Robinson It’s too early to say but reasonable to assume that I will tend to delegate less serious work and focus on the more serious.

Michael Staines None really. I will continue to be an advocate when the occasion arises. There may be a slight difference. Solicitor advocates were open to the criticism, particularly if the case did not go so well, that they should have briefed a barrister. There was a fear that one might be considered negligent for not having done so. This new status should hopefully end that apprehension.

Damien Tansey No change. I am the Senior Partner in the firm amien Tansey Solicitors. My two Partners are my two sons Ciaran and Niall. All of the Solicitors in my Practice engage regularly with a very talented Panel of Barristers and my intention is to continue to operate that model.

Vincent Power For all recipients, it is an honour and distinction which should be treated with respect and dignity. It should be a recognition that one has arrived at the standard requisite to be an SC but there is no resting on laurels. I hope more colleagues across the country obtain it so that it will be less of a rarity. Personally, I see it as a great and valued honour.

Cormac Little For starters, being an SC will allow me to continue the development of my current areas of specialism listed above. I also regularly advise clients in the area of regulatory investigations that potentially lead to civil penalties (including court-endorsed fines). eing an SC should allow me to continue the development of this area of practice given that I d like to think I d have the credibility to represent clients in oral hearings before the relevant decision-making bodies without instructing a barrister. Finally, I’ve been fortunate to plead before the Luxembourg-based courts in the past and this is an area in which I look forward to deepening my expertise.

Liam Kennedy I appreciate the honour and I think it is an important recognition of the importance of our role as solicitors. Barristers and solicitors should operate as a team, on behalf of the client. e are all professionals sub ect to the same ethical obligations and we should treat each other (and our opponents) with respect and courtesy irrespective of seniority or titles. I don’t expect that it will fundamentally change my role. Nor unfortunately will it necessarily improve the quality of my legal analysis, but it is a welcome recognition of the role


Autumn 2020 dsba.ie

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which I and other solicitors play in representing and advising Irish clients.

4. It is reported that up to 47 solicitors applied for the grant of Patents of Precedence of which you and 16 others were successful. What advice would you give to those who didn’t make it on this occasion or to those who might aspire to applying when the opportunity next arises? Áine Hynes It was a comprehensive application process where the criteria and requirements were clearly set out. I endeavoured to provide evidence of my experience to meet the criteria on the assumption that a scoring system would be applied. My application included copies of articles and presentations and ran to over 1000 pages.

their chosen field. That being so it is difficult to say what factors beyond a lengthy and diligent period in practice will tilt the balance.

Michael Staines To become a Senior Counsel you have to become an established advocate or have developed a specialism. I have met solicitors who have impressed me with their in-depth knowledge of their sub ect. I am therefore surprised when they inform me that they must brief barristers for the Court or Tribunal hearing. They perhaps fear appearing before a Tribunal and also, perhaps, they welcome the comfort of having someone else in the front line. I would advise Solicitors to appear as often as they can before the Courts and to become specialised in the area in which they practise.

Damien Tansey

If you believe you fit the criteria, be sure to include everything that can objectively demonstrate your accomplishment. The application form is not the place for reticence.

For those applicants who apply to be appointed as Senior Counsel, I would advise them to address the specific Statutory Criteria prescribed by Section 1 of the 2015 Act. This provides that applicants must demonstrate a degree of competence and probity, professional independence, a proven capacity for excellence in the practice of Advocacy, excellence in the practice of specialist Litigation, specialist knowledge in an area of the law, integrity and probity and overall suitability.

Patrick Groarke

Vincent Power

If you have applied and you were not successful, you are only too familiar with the application form which is not for the faint-hearted If it is your intention to apply on the next occasion, you should download and familiarise yourself with the form and be mindful of the high standards that are expected of you.

o try again – very few know if you had applied before. I really would like to see more female applicants – this was the one disappointment about the 2020 group. Start on the process now by reading the application form and jotting down ideas. I had about two weeks to prepare but it needs re ection. ive plenty of time to completing the form – the applicants next year will hopefully not have a Lockdown to help

Helen Noble Take considerable time over the application.

Richard Hammond

Bill Holohan Apply. Remember: dumb priest will get no dues” and If at first you don’t succeed, try try again.”

Cormac Little

It was a challenging process, so firstly my commiserations to disappointed colleagues. Take on board the Advisory Committee’s feedback and focus on demonstrating the case with concrete examples.

2 2 was obviously the first year in which solicitors could apply. Therefore, it was difficult to predict how the evaluation process would unfold. That said, the first port of call for any potential candidate should be the application form. I would recommend any wouldbe applicant to review this document very carefully. The form seeks detailed information regarding your career history, your professional experience/cases, your legal publications/ speaking engagements allied to any involvement with relevant committees/associations. n studying the application form, if a solicitor finds that he/she has lots to say regarding the majority, if not all, of the relevant headings, I would encourage him/ her to submit an application.

Dara Robinson

Liam Kennedy

It is difficult to answer this uestion without information on those who applied and were not successful and why they were not successful. It does seem that the rate of unsuccessful applications was rather high and this suggests that the bar has been set at a significantly elevated level, possibly more elevated than that for L aspirants. f those successful solicitor applicants who I know personally, about half of the group, I believe they would all be acknowledged by their peers as leading experts in

It was difficult on this occasion because it was the first time and no one was sure of the ground rules. The applications had to be submitted in a short timeframe. I suggest candidates should review this year s application form now and start gathering evidence well in advance to show how they meet the criteria. I can think of many solicitors who would be eminently ualified and I hope they go forward over the next couple of years, particularly many more women solicitors. P

Paul Egan Read the application form and the uidance for Applicants thoroughly and ensure that every point is addressed. Share your application with your referees, who will provide invaluable insight and advice about what is relevant and what is not.

Rory Kirrane

the Parchment 11


New System for Oaths and Affirmations In response to the difficulties Covid-19 creates for normal business practices, a suite of legislation has been passed by overnment to address these challenges. Rebecca acCann takes a closer look at this ma or change

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rom the Courts perspective, the move to remote working has brought to light the urgent need for a modern, technologyfriendly ustice system. The recently enacted Civil Law and Criminal Law ( iscellaneous Provisions) Act 2 2 (Act) aims to facilitate, among other things, the remote working of the Courts by providing for increased availability of electronic filing, the expansion of video link evidence, and remote hearings of appeals. The Act introduces both temporary measures to help the Courts during the coronavirus pandemic as well as long-term reforms of the ustice system. Interestingly, one provision in the Act – the introduction of statements of truths , has nothing to do with Covid-19 but will have a significant impact on legal practice from now on.

Traditional Forms of Swearing Documents can now be Replaced by Statements of Truth From 21 August 2 2 , where evidence is to be given in civil proceedings by way of affidavit or statutory declaration, the deponent (the person signing the document) can now, if they wish, make what is called a statement of truth instead of the traditional religion-based oath. p to now, affidavits and declarations re uire the deponent to swear or declare to the accuracy or truth of the contents of the particular document. This is done by swearing or declaring a religion-based oath in the physical presence of a Commissioner for aths 12 the Parchment

or a practising solicitor. A non-religious deponent can make what is known as an affirmation instead of an oath. The affirmation does not mention a higher being, but it exposes a deponent s lack of religious belief by virtue of the fact that the deponent has chosen to affirm rather than swear on the document. In contrast, a statement of truth is a simple non-religious statement confirming that the facts stated in the document are true. This can be done remotely without having to appear before a solicitor or Commissioner for aths. The statement of truth can be in electronic form too, which ties in with the general move by the Courts towards electronic filing. Conditions and exceptions to the use of statements of truth may be specified in the enabling Rules of the Courts, so we could see some potential limitations on the use of statements of truth when the enabling rules are introduced.

“Honest Belief� As a replacement to swearing before a higher being, the statement of truth must state that the person making the statement has an honest belief that the facts as stated are true and it must be signed by the person making the statement (electronically or otherwise as permitted by the Rules of the Courts).

Penalties for Breaches It is a criminal offence to make a statement in a statement of truth without an honest belief as to the truth of that statement.


Autumn 2020 dsba.ie Rebecca MacCann is an associate in the Litigation and Dispute Resolution department at William Fry

The possible penalties for committing this offence are a fine up to 5, and or imprisonment up to 12 months (on summary conviction) or a fine up to 25 , and or imprisonment up to 5 years (on conviction on indictment).

Where has this Change come from? The Law Society has campaigned for years on the need to modernise the oaths and affirmations system. The Law Reform Commission (LRC) published a report in 199 advocating for the abolition of religious oaths entirely. Although largely ignored at the time, the LRC outlined many reasons why the oath is unsatisfactory, and its report noted that many forms of oath are “at best embarrassing and at worst o ensive”. A very significant concern raised is the risk that a uror or a udge might be pre udiced against a witness who affirms or who refuses to take an oath. The overarching message from the LRC recommendations is that there should be a universal and simplified procedure which would place all persons on an e ual footing. hile the LRC s 199 report was published at a time when Ireland was still predominantly a faith-based society, that is no longer the case. As ichele oyle, President of the Law Society rightly said recently, “requiring a person to either declare one’s religious conviction, or lack thereof, is, by any standard entirely inappropriate in a progressive, st century legal system”.

General Practice

Does the Statement of Truth lend itself to the Making of Dishonest Statements? A peculiar argument, but one that has been raised fre uently is: if a deponent does not swear or declare on a religious oath, what is preventing them from making dishonest statements The short answer is penalties and Section 21 of the Act has them covered. A per urer, be they religious or not, is not going to be dissuaded from committing per ury by the mere re uirement to swear a religious oath. It is up to the legal profession to identify and challenge a dishonestly made statement to the court and, from our own experience, we are rather good at doing that

Looking Forward There is an obvious gap in the Act as it does not cover oral evidence given to a Court. urors and witnesses giving oral evidence in court must still swear a religious oath or make an affirmation. It is hoped that the use of statements of truth will become widespread and will lead to a wider overhaul of the oaths and affirmations system to accurately re ect the diversity and inclusivity of Irish society. For now, ust remember that if you or your client are not comfortable swearing or affirming an affidavit or declaration, most situations will allow making a statement of truth. The legal profession is waiting for new Rules of the Courts to be published which will cover the practice and procedure for making statements of truth. opefully, they will be available soon. P

Re uiring a person to either declare one s religious conviction, or lack thereof, is, by any standard entirely inappropriate in a progressive, 21st century legal system

the Parchment 13


Timing is Everything

THOMAS BYRNE TD Sitting across a large and socially distant conference table, the newly appointed inister of State for uropean Affairs and former solicitor explains to Killian Morris how success, in his legal and political career, has been down to a mixture of hard work and good fortune

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o many opportunities in life come to those who are in the right place at the right time and it seems that this affable unior inister has taken every opportunity life has presented to him. It is also abundantly clear how his legal training and experience as a solicitor have in uenced his political career and he is particularly anxious to recognise the central role that his friends and colleagues have played in his development. e spend a while chatting before the interview starts about mutual connections, (like all politicians he knows a lot of people ) and he name checks a number of those from his LL course in Trinity as being some of his closest friends today. Thomas yrne grew up in rogheda, the eldest of seven children. is father, Thomas Snr, was a local auctioneer who was always very ambitious for his children and encouraged them all to attend college. Thomas and his sister ary, now a partner in rien Lynam, both ended up as solicitors but Thomas had initially wanted to study history and politics in Trinity. e recalls “unfortunately, at the time, the points were too high but I ended up getting my second choice, which was Law in Trinity. My Dad had always wanted me to do law as he had a lot of dealings with solicitors as

14 the Parchment

I was disappointed at the time, but, as I like to say to young people now, sometimes it can ust land the right way and you take your opportunities

an auctioneer in Drogheda. I was disappointed at the time, but, as I like to say to young people now, sometimes it can just land the right way and you take your opportunities.” The start of university life also led him to take his first step into politics. “I joined the Fianna Fáil Cumann on my first day in Trinity; my Dad, who was a County Councillor wanted me to join” as he explains how he first got involved in party politics. e also mentions that two cousins, on his mother s side, ichael and Colm illiard, had been T s for eath over many years. That said, he had to confine his Fianna F il involvement to within the walls of Trinity College as he knew he couldn t have campaigned for Fianna F il in rogheda, given his father s position was as an Independent on the Council. Thomas also involved himself in the Law Society and the Students nion while on campus. ne of his lecturers on the LL course was the late rian Lenihan, former inister for Finance. e remembers fondly how close the relationship between the pair became “Brian was always a great mentor to me in politics. We always had a great connection, we [the Trinity Cumann] used to help him out on his early campaigns and then, subsequently, he helped me a lot when I first ran for the Dáil in


Autumn 2020 dsba.ie Killian Morris is a partner at AMOSS Solicitors. He is a member of the Parchment committee

News/Interview

the Parchment 15


2007.” f course, Lenihan was inister for Finance during the financial crisis while at the same time having been diagnosed with pancreatic cancer, but it seems he was still very willing to give up his valuable time to others, including Thomas. ne such example was after Thomas lost his il seat in 2 11, ust three months before rian s death rian phoned him from his sick bed to give him advice about his run for the Seanad. e says, as an aside, that he had intended to run on the agricultural panel for the Seanad but the Clerk of the Seanad was insistent that, as a solicitor, he had no option but to stand for the Cultural and Educational Panel, which was a tougher route. A number of weeks later, having traversed the country seeking out votes from councillors in every county, and with the benefit of Lenihan s sage advice, yrne was elected to the 24th Seanad as one of 14 Fianna F il senators. Turning back to his political mentor, he recalls the final time that he spoke with Lenihan, about a month before he died “it was one Saturday morning and I was on my way to be on the panel on RTÉ Radio. He spoke to me for about an hour, I remember it well, I was at the Service Station in Sandymount”. There is little doubt that Thomas feels a huge debt of gratitude to rian Lenihan, and to the many other senior figures in politics, and in law, that he has worked with over the years, all of whom were so willing to give up of their valuable time to help him along the way. is legal studies in Trinity tended to focus on Law and Competition where (now udge) erard ogan was one of his lecturers. Following his graduation at the tender age of 21, Thomas yrne was hired as an apprentice solicitor by McCann Fit erald. e recalls being interviewed for 16 the Parchment

the role at the time, and explaining that one of the reasons he wanted to work there was that he used to pass their impressive offices at arbourmaster Place on the train each day. The reply he got from the interviewer was that some of the lawyers in cCanns would be looking back longingly at those on the train, hoping to swap seats! uring his time in cCann Fit erald, his love of all things uropean would become very useful during his seat as an apprentice in the and Competition department but also when subse uently working in the same team as a ualified solicitor for three years. It is ironic now, so many years later, that he has ended up in his current position as Minister of State for uropean Affairs. hen I asked him whether this grounding has helped him in his current role, he replies “not much has changed really from a legal perspective. The numbering in the Treaty has changed - I still refer to Article 85 and 86 all the time!” e tells me the work he did as an apprentice and after, when ualified, included advising on merger notifications, dawn raids and he even had to attend the Special Criminal Court on one occasion, for a commercial client (which is rare for somebody working in a large commercial firm). e fondly recalls the mentorship and guidance of erald Fit erald in the group but also ichael ealy, who he worked under as an apprentice but who is still very much available to him, whenever he needs a steer. hile working for ichael, he was involved in the everly Cooper Flynn libel case, which attracted huge media attention at the time. ven though he had been on the team acting for Flynn in the case, their paths did not cross again until he bumped into her on his first day in the il in 2 .

After three years or so following ualification, he received and accepted a ob offer from ohn Feran of Feran Co in rogheda. This was a completely new experience for Thomas, in a general practice where you had to deal with anything and everything on a daily basis. e notes that ohn Ferran, like the partners in cCanns had a “great appreciation for grammar and words and how they are used; I hope I learnt something from them”. It is apparent, from speaking to those working in his office, that this is one trait that Thomas not only learnt but is now applying with rigour to every document being produced by his team in overnment uildings. It was also during this time, while working in Feran Co, that opportunity came knocking for Thomas to get involved in national politics. Since leaving Trinity, he remained a member of Fianna F il but had not been active. In advance of the 2 general election, a new constituency of Meath East had been created and the sitting T s were ary allace (FF) and the late Shane c ntee (F ). All parties were looking for the right candidate to fight it out for the third seat and Fianna F il made the approach to yrne, asking would he run for the party and, as he says himself, it was definitely a case of “being in the right place at the right time”. e worked very hard on the ground in the run up to the election and was duly elected a first-time T for the constituency of eath ast. hile Thomas is at pains to point out how much he learnt from his time in a large law firm, he seems to also have taken a lot from his time in general practice. e points to the fact that, in his current position, he is regularly sent out to bat for the overnment on issues which are part of other Ministers’ departments, where you have to learn uickly. e readily acknowledges that the grounding he received as a general practice solicitor has certainly helped on that front. is ministerial role also involves reading and digesting large amounts of briefing material, something he believes that his legal training has prepared him well for. As Minister for State with responsibility for uropean Affairs, Thomas yrne has been thrust into the rexit negotiations at a critical time for Ireland. Conscious that this interview won t be published for a number of weeks, he is naturally reluctant to predict or opine on anything specific. e obviously hopes for a deal and he re-iterates the message that the Irish overnment is very confident and happy with how the negotiating team are handling negotiations. e mentions that he had personally met with ichel arnier (chief negotiator for the


Autumn 2020 dsba.ie

News/Interview

Photography: Bryan Meade

in rexit negotiations) only the week previously to get an update on the current position. e explains that the ob invariably entails a lot of travel, although the Covid-19 restrictions mean that travel is more or less confined to visits to key meetings of the eneral Affairs Council where he represents Ireland. A uent Irish speaker, he uses Irish at all formal meetings of the eneral Affairs Council but his working knowledge of French and Italian are e ually important in communicating with his uropean colleagues. Also, when the uropean Affairs Council meets, the Taoiseach represents Ireland but Thomas, as inister for uropean Affairs, will also be in attendance in an important supporting role, given the preparatory work that is done at eneral Affairs Council, in advance of the leaders summits. I ask him about what he feels are the important issues facing Ireland at a uropean level (apart from rexit) and he cites two in particular. First, he says “we have the European Budget which is currently under negotiation between the [European] Parliament and the Council”. e highlights the importance of the Recovery Fund, as part of these negotiations the hope being that Ireland (and indeed the rest of urope) will massively benefit from this vital cash in ection to its economy in the aftermath of the pandemic hopefully in the New ear. I assume the second key issue is going to be maintaining Ireland s corporate tax rate but he is clear that the government s view is that this is a sovereign matter which is not up for discussion. That said, he thinks that another initiative is currently gaining traction on an level which could have a similar impact on Ireland. This is the concept of own resources . This is where the strives to be less reliant on international trade and instead focuses on strategic autonomy where uropean companies can serve the uropean market, rather than having to import essential products. Thomas explains that this isn t necessarily attractive to Ireland as we rely so much on being an open economy and this would be a move away from free trade. e notes that “some Europeans would not be happy that the American multinationals did so well in Europe and there is a push on to create some kind of European alternatives now but I don’t think they are going to happen through government fiat. It needs to happen organically through investment in research. I think from an Irish perspective we need to ensure this doesn’t end up becoming a barrier to the free trade we have benefited from”.

Thomas Byrne at a glance

AGE 43 FIRST ELECTED TO DÁIL: 2007 CURRENT ROLE: Minister of State for European Affairs FAMILY: Married to Ann. They have three children. FORMER SOLICITOR AT: McCann FitzGerald and Feran & Co.

oving closer to home, I ask him about the apparent ‘sea change’ we are currently seeing in Irish politics, particularly with the rise of populism which is re ective of what has happened in the S and the . e agrees that this is a significant challenge. “The rise of populism is an issue. Sinn Féin are avowedly populist. They maintain they are left wing populists rather than right wing populists but I think it is pretty similar. I don’t think it is good for the country because I think we need to have clear views on what is to be done not just to dance to the latest tune” he says. e hopes that more people can get involved in centre ground’ politics and he singles out solicitors as being a cohort who could probably contribute more. hen asked about what they are doing to combat populism, he says they are working hard but are still worried that that there are too many people “sitting on the sidelines and letting the slide [to populism] happen”. e also acknowledges that there is a need for the ‘centre ground’ of politics “which has served the country well before”, to deliver for the people. e also points to the steps made by government in recent times to support people, during the pandemic, but also “the need to foster an environment where jobs can be created and sustained”. utside of politics, Thomas is married

to Ann unt with three children (Sin ad, Tom s and aithi). is weekends are spent, like much of his generation, driving the kids to and from sports with time for little else The family are heavily involved in St Columcilles AA club although he admits he was never that sporty himself “it was my wife, she played inter county football for four counties; Sligo, London, Dublin and Meath. She only retired a couple of years back. She was my entrée into the world of sport”. e also en oys going on family camping trips to urope (in a tent and not a mobile home he stresses ) which he hopes to do again, when the health crisis is over. Finally I ask Thomas whether he will ever make a return to life as a solicitor. e laughs and uips “I hope not!” but this is understandable as this would likely mean he has lost his il seat. “The one thing about politics is it doesn’t last forever; so who knows?” he says. No doubt, given his life to date, Thomas will find something fulfilling, whenever his political ourney ends. In the meantime, there is little doubt that the Meath East T has not yet finished climbing the rungs of the domestic political ladder. aybe we will meet in an even bigger office the next time . P the Parchment 17


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Michael Boylan Litigation welcomes new Partner Michael Boylan Litigation Law Firm, the recognised specialist litigation law firm has appointed Ciara McPhillips as a Partner. Ciara has worked with Partners Michael Boylan and Gillian O’Connor since the firm’s inception and before. She has amassed a wealth of knowledge in the firms specialised field of litigation but particularly in the field of clinical negligence. Currently, Ciara’s case load incorporates complex medical negligence actions including vaginal mesh insertions, cervical oncology and adverse events following the prescription of Epilim to women of childbearing age. Managing Partner Gillian O’Connor said, “we are delighted to welcome Ciara as Partner. Her appointment reflects the strong growth of the firm and our commitment to continue providing a high-quality service to those who have suffered as a result of clinical negligence”. Originally from Co. Monaghan, Ciara McPhillips has specialised in Plaintiff litigation from the beginning of her career. “I am delighted to join Gillian and Michael as a Partner in Michael Boylan Litigation. Michael and Gillian have acquired exceptional reputations in the field of clinical negligence and litigation. I look forward to continuing to work with them and with our clients to secure the best possible outcome for those affected by incidences of medical negligence”.


Law Society Elections October is election time for the Law Society Council and the Parchment is supporting all ublin-based candidates by publishing their candidature in the upcoming election. Each candidate was asked to furnish 5 words on either (A) why they should be elected re-elected to the Law Society or ( ) what are the biggest issues facing the profession. elow is what we received from each candidate

A

s this is the Parchment, we cannot let the occasion pass without a plug for former S A President Áine Hynes and regular Parchment contributor Richard Grogan. Also running in the election is Tara oyle, Imelda Reynolds, an Connor, Carol Plunkett, James Murphy and Michelle Ní Longáin. There is an excellent field of candidates to choose from in this year’s Law Society Council elections. ake up your own mind, support the S A and the ublin candidates and ensure that you vote.

ÁINE HYNES My name is Áine Hynes and it has been my privilege to represent the profession on Law Society Council for the past two years. I am now seeking reelection – and of course, I do not expect your vote to be automatic. I believe your representative should work hard to promote your interests and I have always tried to do this. For example, while President of the S A, I was appalled at the long delays in the taxation of costs and took on board the feedback from you about the impact of the delays on your practices and employees. To address this, I worked with The on. r ustice elly P., leading to the formulation of Practice Direction HC71, which provides that the Court can make orders for payment of a portion of costs prior to taxation. This direction had an immediate positive impact on the speedy recovery of costs. 20 the Parchment

As a Council ember I have represented your interests in the law society via the following committees and initiatives:

Women in Leadership Mentoring Programme I have had great pleasure volunteering for this law society initiative since 2 15. I have tried to assist younger female colleagues to reach their full potential and empower them to have the courage and confidence to take on challenges. I am honoured to be one of the first female solicitors appointed as Senior Counsel and I hope to encourage more female colleagues to apply in the future. Indeed, I hope my appointment motivates more women to apply for the most senior roles within our profession.

Litigation Committee I have been a member of the Litigation Committee since 2 , dealing with multiple ueries from the profession, reviewing superior court rules and procedures, and assisting in drafting guidance notes for the profession, including the law society medico legal recommendations booklet.

Task force on Mental Health and Capacity I am ice-Chair of this Task Force and a member since 2 . I oined as a solicitor representing the most vulnerable in society and this an area of law that I have devoted much of my professional career to. As part of the Task Force I have assisted in drafting practice notes and guidance for Solicitors dealing with vulnerable clients drafting submissions to overnment on ental Health and Capacity legislation and drafting Codes of


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Elections

Practice for the Assisted Act.

ecision- aking (Capacity)

Legal Services Regulation Act Task Force The impact of the Legal Services Regulation Act 2 15 cannot be overstated. It is one of the most significant pieces of legislation to affect the legal profession in any of our working lifetimes. I am pleased to be part of this Task Force which is working hard to represent your interests in dealing with the LSRA and in assisting solicitors to navigate the challenges raised by the legislation, including the new costs regime. I am committed to continuing my work as your representative and would greatly appreciate your vote.

RICHARD GROGAN The biggest challenges to our profession currently, in my opinion, are dealing with three issues. The first is the maintenance of incomes. That is incomes of Partners, Principals, and, Associate Solicitors. any firms and colleagues have seen incomes fall. thers have concerns for 2 21. The second is Professional Indemnity Insurance. An increase this year after the increase last year will place significant pressure on firms. This translates into further income reductions. The Law Society can help by reducing the cost of the Practising Certificate. I have looked for a 5% reduction and have been criticised for doing so. Despite what may be claimed, I am of the belief on the figures that 5 % as a reduction

on a one year basis is practical without any impact on the Society at all, and 5% is possible with minimal impact. The arguments against such a reduction are based on what I term conservative accounting practices . The third is the stress which colleagues at all levels are under. It is one which is evident. The Society is trying to provide support services for colleagues and that is to be welcomed. As a profession we need to recognise the stresses which are here and to support each other. As a profession we must act together. e have challenges. They are serious challenges. There are no simple solutions. owever I do believe that the Society has to be seen as the representative body of our profession and that capital sums set aside this year will have to be used to maintain services but at the same time to reduce the cost of the Practising Certificate and the cost of obtaining services from the Society. e must as a Profession work together for the benefit of us all. I am a candidate in this year’s election. I would greatly appreciate your vote.

MICHELLE NĂ? LONGĂ IN I am asking for your vote in the Law Society Council elections. I grew up in Donegal and ualified as a solicitor in Northern Ireland in 1994. I practised in Northern Ireland initially and then in England before returning to Ireland in 1999. I have been a partner in yrne allace since 2 1. I became an the Parchment 21


elected member of the Council for the first time in 2 4 and have served on the Council since then. I am again seeking your support as a candidate for election to the council so that I can continue to represent you and work on your behalf. ost recently I have chaired the ender uality iversity and Inclusion Task Force, which brought together the knowledge and input of a wide range of our colleagues. I have also chaired the Finance and Education Committees, Skillnet, and Finuas networks and I am the chair of the Audit Sub Committee. I have served on many committees and was a member of the Task Force on the Legal Services Regulation ill. e have all faced an extraordinarily difficult year wherever we practise, whatever the stage of our careers, whether in a small or large firm, in-house, in the public or private sectors, in a city, town or rural area. I believe that next year is likely to be even more demanding in our professional lives, as the impact of Covid-19 continues to take effect on people s lives, their finances, and business nationally and internationally. rexit s current and future impact are also realities that we must address, all while dealing with the challenges and opportunities created by the Legal Services Regulation Act. I have spent many years navigating challenges within the Law Society Council for our profession and I ask you for the opportunity to continue to do so. I believe that the experience that I have had on the Council of the Law Society for the past 1 years, as a partner in a law firm for 19 years, and as a busy, active practitioner enable me to represent you well at this time of unprecedented challenge for us all.

TARA DOYLE I am a partner in Matheson, the firm I oined as a trainee 2 years ago. As the only candidate in this year’s election who has not previously served on Council, I would hope to bring a fresh voice and perspective to the Council s work. I believe I can contribute to the Law Society’s work in a number of key areas. Competitiveness. I am the ead of atheson s Asset anagement epartment. y practice area involves advising international clients, who en oy considerable choice when deciding in which urisdiction to domicile their funds and asset management companies. As a result, I am keenly aware of the need for the Irish legal profession to be internationally competitive and would like to contribute to the work of the Law Society to ensure this is the case. Professional Wellbeing. I am very conscious of the health pressures, mental and physical, which all members of our profession have faced this year, regardless of the nature of their practice. While these pressures have been heightened by the Covid-19 pandemic, I believe they will be an enduring concern for the profession. I am deeply interested in this area and would like to contribute to the Law Society’s development of the Professional ellbeing Charter. 22 the Parchment

Diversity & Inclusion. I am a member of atheson s iversity and Inclusion Steering Committee and so very much welcome the ender uality, iversity and Inclusion ( I) Charter developed by the Law Society s I Task Force this year. I would like to continue to support the work being done by the Law Society to create diverse and inclusive cultures within Irish law firms. Education. I have served as chair of atheson s raduate Talent evelopment Committee since 2 2 and so am very aware of the challenges facing law students, trainees and newly ualified solicitors in entering the profession. I had the very rewarding experience of serving on the Law Society s Curriculum evelopment nit this year and would like to continue doing my part to ensure appropriate design and oversight of Law Society training, as well as fostering diversity and inclusion in our profession.

DAN O’CONNOR e are living in incredibly challenging times. Covid-19 has had a significant impact and has accelerated digital transformation, that will outlast the pandemic, on almost every facet of life including the provision of legal services. These changes will have significant and long term implications for our society. Solicitors – given the key role we play at the heart of Ireland’s community and business life – will not be immune. In this new environment, it will be important that the interests of all solicitors, no matter where or how they practise, is well represented. This, together with the change in the role of the Law Society from regulatory to representative body, presents us with a real opportunity as well as challenges. It is important that the Law Society is e uipped to support our profession in confronting the challenges whilst availing of the opportunity. The Law Society has taken advantage of the halt in normal business to conduct a number of reviews in respect of all aspects of its being and operation. I commit, if elected, to ensure this important work is continued and that the Law Society’s governance, structure and ways of working are fit to support the demands of a modern and ever evolving profession. We need to ensure that the Law Society is best placed to: • Ensure, we solicitors, work together as a united profession; Preserve our independence • Represent solicitors as a whole with all the necessary skills; Forge better and stronger links with the ar Association of Ireland and evelop innovative solutions to the challenges we face. y experience both on the Council and in practice, together with my passion for the solicitors’ profession and the important role we play in Irish society, are my motivation for seeking a further term on the Council.


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Elections

I am committed to working to highlight the contribution of solicitors and to safeguard their interests. I will always try to be a voice for integrity and do my very best to promote the best interests of solicitors as a whole.

IMELDA REYNOLDS I have been a member of the Law Society Council since 2 1 , and last year took on the role of Chair of the Regulation of Practice Committee. I’d welcome your support to allow me continue to contribute to the Society for a further period and support the substantial programme of work underway, particularly in the regulatory area. This is undoubtedly a time of great change, and we’re facing some unusual challenges. Dealing with them as effectively as we have to date demonstrates ust how resilient our profession is. It is likely that many of the changes we ve seen in the last few months will become part of a new way for the profession to think and operate. I ve been with eauchamps since ualification, served as anaging Partner and, since 2 11, have been the Chair. I also have a number of other roles outside the firm, on public sector and not for profit boards. The changes underway will re uire leadership and initiative from the Council of the Society. I d like to continue to bring my experience, gleaned over many years of practice and management, to bear at the Council table. e re operating in a competitive and challenging environment. In that context, Council has to be an effective and relevant voice for our members and has to lead from the front. We need to ensure that the governance, structures, and processes of the Society are proportionate and fit for purpose, and command the trust and confidence of members. I’d appreciate your support to enable me to contribute towards achieving that.

JAMES MUPRHY e are a very resilient profession. Notwithstanding the turmoil caused by the financial crash of 2 , the profession as a whole recovered and business volumes picked up again. Numbers in the profession are growing and we continue to attract the best talent – the high points re uired for law courses in all of our third level institutions bears this out. owever, we need to focus on retaining this talent as much as possible. Training a person to become a solicitor is a long and expensive process for the solicitor, the Law Society and the training firms. In my experience, we lose too many solicitors from the profession, particularly in the early stages of ualification. As a profession we need to consider why this is and what we can do about it. The current Covid crisis is one of the greatest existential threats to the profession in my years in practice. While the Law Society has

been a powerful advocate for the profession at this time, nevertheless firms are struggling with declining workloads, challenged cash ows and increased PI insurance costs. Some firms will fold and others will never be the same. Trainees and younger solicitors are feeling the brunt of this. Apart from employment concerns, it is difficult to give these lawyers the level of day to day attention and on the ob training they need. hile the crisis will inevitably pass and most firms will recover, this legacy will cast a long shadow over the profession. Finally – and though at a time like this it can be difficult to think of it as a priority – we do, in the long term need to be mindful of the impact of increased regulation on the profession. While much new regulation is sensible, the Society needs to stress test all new proposals to make sure they are necessary and that solicitors can devote most of their working day to doing what they do best, delivering legal services.

CAROL PLUNKETT One of the issues facing the profession currently is the sense of isolation we all feel as a result of Covid-19. The vast ma ority of us have been working from home since this all began in March and while a novelty at first with certain advantages, as time goes on and there is no end in sight, that isolation is growing more acute. We need time out from the daily concerns of keeping our practices going and looking after employees and clients. An option for coping with this is to use one of the most valuable support services which the Law Society provides that of legal education. hen the pandemic bit, the world of human physical interaction ended and new ways of communication had to be adopted. The Law Society’s amazing Education Department worked long hours to redesign every course for provision online. ours of free education have been offered to the profession, some with the invaluable support of Skillnets funding. ver 12, solicitors and trainees have benefited from these diplomas and online CP courses, all at no cost. It is an excellent way of meeting colleagues, even if only virtually and of taking your mind away from legal practice issues ust for a while. The trainee PPC courses were redesigned too and run completely online using Panopto for lectures, chat facilities, breakout rooms and screen sharing on oom. Participation has been 9 % to 1 %, higher than in normal courses. The Counselling Service to students has had more extensive use than its o ine e uivalent. A series of nlocking ellbeing and Legal Lives webinars is being offered to the profession in general. The Law School s success in dealing with the Covid-19 health crisis has ensured that no trainee or solicitor was disadvantaged or delayed in completing their course and receiving their ualification or CP hours. If you haven t already, do look at the options available. hile not the same as sitting in the lecture theatre in lackhall Place or meeting colleagues for coffee at a cluster event, it is a reasonable substitute in the circumstances and a small but worthwhile respite from present worries. P the Parchment 23


Advices on Professional Indemnity Renewal For many the 2019/2020 Professional Indemnity Insurance Renewal season came as something of a shock. The Professional Indemnity Insurance Taskforce of the DSBA sets out some advices on the upcoming renewal process

N

otwithstanding that the amount of claims for solicitors had been relatively modest prior to the renewal period, the insurance industry decided to impose upon many members of the profession substantial increases on their premiums.

Background

Since 1994, the obtaining of Professional Indemnity Insurances has been mandatory for all solicitors and even where historically it wasn’t mandatory many firms, if not all, would have maintained some form of Professional Indemnity Insurance. In 1994, of course, the world was a different place in many respects – not least because we had the Solicitors Mutual Defence Fund in the market at that time. While things ended badly for that Fund, nonetheless for many years it operated successfully and helped to keep premiums at a low and sustainable level. The recession which struck us all finished the Mutual Defence Fund and indeed members of the profession had to step in to assist those colleagues who were insured with the Mutual Defence Fund to make sure that they were covered by way of an annual subscription for a number of years to the Law Society to back up the Fund. As we headed into the recession there were still however a good number of insurance companies in the market and indeed many members during the recession availed of the existence of not just rated but unrated 24 the Parchment

insurers in the market who met the criteria such as for example UK General. The unrated insurers left the market subsequently and cannot now return as the Law Society restricted the market to rated insurers. With the ending of the recession we began to see a whittling down over a period of time of the number of insurers who were actually operating in the Irish market and by September of 2019 there were only six insurers in the Irish market.

Current Position It needs to be understood that not all insurers cover all firms. In 2019, of the six insurers in the market, two of them would only cover Partnerships and the remaining four – while they would take sole Practitioners and Partnerships – would be selective in relation to the nature of the work that they would cover. For example, some firms would only insure practices where the property element of their turnover was less than 25% of their overall turnover. What this all means of course is that when we got to September of 2019, the profession was suddenly faced with a relatively small number of insurers in the market many of whom saw fit to increase premiums across the board. The mood music from the Law Society, who are one of the two regulators responsible for dealing with insurance, is not good and while there is talk


Autumn 2020 dsba.ie The members of the DSBA Professional Indemnity Taskforce committee are Niall Cawley, Killian O’Reilly and Avril Mangan

of trying to persuade other insurers to come to the market right now, things are looking difficult and by implication perhaps more difficult than last year. The system operates in such a way that the UK is the primary market for our insurers and they tend to deal with the legal profession’s needs in the UK first and only focus on us once that market closes out so that effectively they start dealing with us in September, October and into November of each year.

The Assigned Risks Pool The situation is underlined by the fact that the Assigned Risks Pool, we understand, currently has 57 firms in it. For most of you, I would hope the Assigned Risks Pool is something that you might have heard of but have not become personally involved in. In essence the Assigned Risks Pool is the insurer of last resort for solicitors who cannot get insurance in the market. The problem with the Assigned Risks Pool firstly is that the premium is substantially higher than the market would otherwise offer (we appreciate the paradox) but also it is a one year deal only. What that means is that if you have not come out of the Assigned Risks Pool and gone back into the insurance market (i.e. if you have not been able to obtain cover) then you cannot remain in the Assigned Risks Pool and in essence you must cease practising. In other words, the consequences of entering into the Assigned Risks Pool and failing to come out of it

Professional Indemnity Insurance

couldn’t be more serious from a practice’s point of view.

Change There is no doubt that the system that we are currently living with, and operating in, is failing us and is in need of urgent attention. The DSBA Council has requested that proposals be prepared for the purposes of submission to the regulators suggesting changes that can be brought about and these will be dealt with on a later date once those proposals are finalised.

Advices on Renewal Process The purposes of this article is to offer such advices as are available at this time to colleagues dealing with the reality on the ground. That is to say, we have a renewal coming up and we have to deal with it as it is at the moment as any changes to the whole system of Professional Indemnity Insurance are only changes to be made in the medium to long term. With that in mind therefore, we are making the following recommendations to you in the hope that they may be of some assistance:-

The consequences of entering into the Assigned Risks Pool and failing to come out of it couldn’t be more serious from a practise’s point of view

1. Prepare your Application early We know this is constantly being said but leaving your application until the last minute leaves you exposed to having to accept whatever terms you are offered. None of us are particularly enamoured the Parchment 25


about the idea of preparing the application for Insurance but it is something that needs attention early on and certainly, by mid to late October, your application should be in.

If you use the short form, then you are sending a signal to the insurer you are asking a quote from that theirs is the only company that you have gone to

2. The Common Proposal Form The Law Society negotiates annually the Common Proposal Form with the insurance industry. The purpose of the Common Proposal Form and the reason that it was introduced is to relieve you from the task of having to fill out different Proposal Forms. We are strongly recommending that you use the Common Proposal Form. You will be able to obtain same from the Law Society’s website and you should use it. One new area that you might want to consider is the control systems that you have now put in place for those of you working remotely so that you can satisfy your insurer that you have adequate supervision systems in place. Thus we recommend that you AVOID using the Short Form which is often offered by insurance companies. The reasons for this are as follows:a. Even where your insurance premium is satisfactory, having used the insurance company’s short form, sooner or later you will have to use the Common Proposal Form. As this writer has discovered, an insurer who is happy with your short form for many years will eventually decide that they want the Common Proposal Form (or a long form) completed. The problem with that of course is that the amount of information that you have to collate on an annual basis will be multiplied by the number of years that you have not done it. We would strongly advise therefore that you complete the Common Proposal Form for that reason. b. If you use the short form, then you are sending a signal to the insurer you are asking a quote from that theirs is the only company that you have gone to. They are therefore aware by implication that you have not completed the Common Proposal Form and that no other insurers are on the field vis a vis yourself. If you find yourself with the short form having gone in, and a large quote coming out to you at the last minute, you are in a very weak position. c. Using the Common Proposal Form means that you are now free to send your Proposal Form to as many insurers as you want and frankly we would suggest that you send it to all of the insurers.

Long Term Relationship It has often been suggested to us that retaining a long term relationship with your insurer is to your advantage and certainly that does appear to make sense. However, what we have seen is that insurers feel free, notwithstanding your long term loyalty to them, to increase your premiums and they also feel free when it suits them to withdraw from the market and leave you high and dry. 26 the Parchment

For that reason therefore we strongly recommend that you approach all insurance companies in the market.

Brokers Check with your broker, if you are using one, as to what firms they work with. There is no point in sending a Proposal Form to a company that is already represented by the broker that you have retained to look after your interests. This avoids your broker being informed that a proposal has been submitted by you separately. You are hoping, if you have a good broker, that he or she will go to bat for you and certainly they would be undermined in that respect if the insurance company was telling them that they received a separate proposal whether from another broker or directly from you so make sure you avoid that particular pitfall.

The Current Insurers At time of preparation of this article the following insurers were in the market:1. AIG. 2. Allianz. 3. CAN. 4. Liberty. 5. QBE. 6. Starr. Some insurers, as we referenced earlier, will only cover certain type of firms but frankly, if you prepare a Common Proposal Form our recommendation is that you ensure that it is submitted to all insurers either via your broker or directly.

Summary To Summarise therefore we would in simple terms advise as follows:1. Prepare your proposal early. 2. Use the Common Proposal Form. 3. Ensure that there is no duplication on your proposals by speaking to your broker. 4. Send it to all of the Insurers currently operating in the market even if some insurers won’t cover your kind of practice lest their position changes. In closing it should be noted that while we have indicated above who the currently six insurers are, check at the time that you are submitting. The Law Society has indicated that it hopes that further insurers will come into the market. There is no guarantee of this but if it does happen, needless to say, be sure that you get your Proposal Form out to them as well especially if they are new into the market as they may be keen to do business. In any event, we hope that the above is of assistance to you. The DSBA intends to make proposals to its Regulators (the LSRA and the Law Society) with regard to the current operation of the Professional Indemnity Insurance system in the Republic of Ireland and those submissions will be prepared and submitted at a later date. P


Hail Mary!

Mary Keane is a native of Swinford, Co Mayo. A barrister by profession, she is the hardworking Deputy Director General of the Law Society. Most recently, Mary was appointed as Chairperson of the National Gallery of Ireland. Here she chats to another proud Swinford native, Julie Doyle, about her recent appointment and her career to date

Hi Mary, thank you for talking to me today. As a fellow Swinford person, I am delighted to have this opportunity to chat to you for the Parchment about your career and your achievements! Can you tell our readers a little bit about your background and where you grew up in the idyllic county of Mayo?! I grew up on our family farm between Swinford and Foxford. My parents were primary school teachers and, until I was 12, I was taught in a tiny rural school of - 5 pupils with only my two parents as teachers. y brother still farms the land in Culduff. I am delighted to have grown up in the country with a farming background, although I have studied and worked in Dublin since I was 18. I went to boarding school in Claremorris from the age of 12, to the same school my mother attended. I was a bit of a wild child and I am certain that I would never have got a decent Leaving Cert if I hadn’t been a boarder. It was real boarding school back then – you got home once a term, were allowed visitors once a month and studied every day, including weekends. But I loved it really. I made great friends there and became very independent at a very young age. You began your career in the civil service before deciding to choose to study law in UCD. What prompted that change for you? I was successful at the Junior Ex Civil Service exam and was assigned to the Industrial 28 the Parchment

Within the profession, there are many women in leadership, whether as sole principals or managing partners. Personally, I have never regarded my gender as relevant to my ability to do anything that I want to and I have not encountered any barriers based on my gender

Policy Division of the Department of Industry & Commerce. I was delighted to be working and earning money, but I was really bored with the work and, after two years, I decided to take special leave without pay – there was no such thing as a career break back then. My choice of law was definitely in uenced by the fact that my boyfriend at the time was a law student and he seemed to be having a great time at college. I followed suit and had a great three years in C , graduating in 19 5 with a BCL degree. Following that, you trained as a barrister. When did you begin your role in the Law Society and what did you perceive were the greatest challenges for the profession at that time? After C , I spent five happy years working in the Companies Registration ffice in Dublin Castle. I completed the BL at the Kings Inns during that time and then spent two years in the Tax Department of Craig Gardner/Price Waterhouse. It was in 1992 that I answered an advertisement for a position at the Law Society, working closely with Noel Ryan, the Director General at the time. The first two ma or reports that I worked on were a submission to a Government Working Group considering the capping of damages in personal in ury actions (a topic ust reported on by the Law Reform Commission, 27 years later ) and a Report of a Law Society Review Group examining all aspects of the


Autumn 2020 dsba.ie Julie Doyle is a proud native of Swinford, Co Mayo and she is a member of the DSBA’s Parchment committee

20 Minutes With...

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Photography: Bryan Meade

The profession will need to stay ahead of technological developments, use the positive aspects of IT to enhance the efficiency of the services they deliver but also ensure that the essential human skills, training and experience brought by legal professionals stay front-and-centre in all aspects of the legal world Compensation Fund. A substantial number of the recommendations in that Report ended up as provisions in the Solicitors (Amendment) Act 1994, which had the effect of limiting the cover provided by the Fund and protecting it from claims that could have threatened its very existence. You were appointed as Deputy Director General in 1996, almost 24 years ago now. Your appointment was the first time a woman had been appointed as director in the history of the Law Society! Do you think the role of women in leadership in the legal profession has changed much since your appointment? Women have always had the capacity to be leaders but not perhaps the same opportunity 30 the Parchment

as men. That is changing, thankfully, and we now have three women on the Senior Management Team in the Law Society. Within the profession, there are many women in leadership, whether as sole principals or managing partners. Personally, I have never regarded my gender as relevant to my ability to do anything that I want to and I have not encountered any barriers based on my gender. Can you tell us about your Deputy Director General role and what it encompasses? I suppose it is exactly as it says on the tin – I deputise for the irector eneral when he is away or unavailable and we work together on most things when he is not.

On a practical level, those who know myself and Ken Murphy would probably say that we have a very good working relationship, complementary skills and a strong sense of loyalty to the Society and the profession. How has the growth of digital technology within the past 25 years changed your role? Like most people, I am more ‘connected’ now than ever and my working life is ruled by my Outlook Calendar, Zoom calls, email and the iPhone. But I still cling to my O’Brien pocket diary – it s my comfort blanket and I would be lost without it. The Law Society is constantly adapting to change. Since your appointment in 1996 there was a long period of substantial growth for the profession, followed by a recession and eventual recovery which has been hampered by the pandemic. What have been the standout challenges for you throughout that time and how has the Law Society adapted to dealing with the pandemic? On 21 September last, I was 28 years at the Society. During that time, there has almost always been a crisis, a threat or a challenge in some form or other. The profession is very resilient and adaptable. So is the Society. But March 2020 brought a challenge like none


Autumn 2020 dsba.ie

20 Minutes With...

before. I honestly could not be more proud of the way my work colleagues in the Society have stepped up to the plate in the face of this pandemic. They have worked tirelessly over very long hours, for days, weeks and now months, in extraordinary circumstances, to deliver support, services, training and strong representation to the profession and they have maintained the highest standards throughout. I know the story is the same within the profession and across the country. It is a very difficult time, but it will end, and we will move on to the next challenge. What do you consider the key role of the Law Society as regards the provision of services to its members? In terms of the services that we provide directly, I would regard the most important to be information. We interpret, analyse, summarise and deliver information constantly, whether through Committee Practice Notes, Presidential eBulletins, Policy papers, submissions to Government, lectures, seminars, the Gazette, the eZine, website, Library, press releases. The profession, the public, politicians, policymakers are all our audiences and our ob is to distil and deliver information in digestible chunks, in a timely fashion. Even the many supports that the Society provides to members, whether in terms of their careers or their practices, involve the distillation and sharing of information. What challenges do you believe lie ahead for the future of the profession? Technology is a great enabler but it also has the capacity to disrupt the way that legal services are provided and will embolden those without legal training to push them into the legal space. The profession will need to stay ahead of technological developments, use the positive aspects of IT to enhance the efficiency of the services they deliver but also ensure that the essential human skills, training and experience brought by legal professionals stay front-and-centre in all aspects of the legal world.

as Chairperson of the National Gallery of Ireland! Have you always had an interest in art? It’s an extraordinary privilege for me to be Chair of the Board of the National Gallery of Ireland. If my parents were still with us, I think they would feel so happy that their many years of bringing all five of us on caravan trips around ‘the Continent’ in the 1970s to the capital cities of Europe and to every gallery, museum, chateau, schloss and cathedral they could find has been worth it. And they would be right. What might have seemed like an over-immersion in the arts and culture in my teenage years was actually an extraordinary gift that has given me immense oy in later years. As Chairperson of the National Gallery, what challenges do you face as a result of the pandemic? Can the public currently access the Gallery? Regrettably, our principal challenge has always been funding. While the State provides funding to all of the National Cultural Institutions, it is never enough to provide the resources for the acquisitions, exhibitions, research and conservation programmes that we need to provide. We are a charity and we rely on commercial, sponsorship and philanthropic income to fund much of our programming. The pandemic has made a difficult situation worse and, because Level 3 restrictions close all museums and galleries regardless of size, our main sources of revenue are completely closed off. e would welcome a more nuanced application of the Government restrictions that would distinguish those

Galleries and museums, like ourselves, with a significant footprint and a pre-booking ticketing system that can admit and monitor numbers and social distancing restrictions with ease. If you had to choose one piece of art in the National Gallery as a personal favourite, what would it be and why? There are many but my current favourite is a recent ac uisition – er First Communion by Sir John Lavery. I love the wispy veil, the grey background and her bored look. It is so Irish and traditional and reminiscent of days-gone-by but also notso-long-ago. I always pay a visit to her when I am in the Gallery and it has the added benefit of bringing me into the Irish rooms, which I love, and I can then have a quick dip into the Shaw Room, which is always good for the soul. When and if you manage to find any spare time, what do you like to do to unwind? Almost 20 years ago, I bought an old property in Wexford and I have been restoring it very slowly ever since. I love spending time there. I have learned loads over the years about lime mortar and corbel stones and dovecotes and the rhythm of old things. There are many more years of work to bring it back to what it should be and that’s where I go to switch off whenever I can. Finally, what are you planning next? Survive the pandemic, continue my work at the two great institutions in my life, learn more about lime mortar and travel the world some more when it opens up again. P

You are also the Director of Policy and Public Affairs in the Law Society. What does this role entail? It primarily involves the co-ordination of the work of the Society’s Committees and Task Forces and our dealings with the Oireachtas and other policy-makers. It also involves relationship-building with other professions, other Law Societies and at EU level and a number of discrete policy areas, including AML and eConveyancing. You are obviously extremely busy with your role in the Law Society, however, we must also extend our congratulations to you as you have been recently appointed the Parchment 31


Proposed Family Law Reform Keith Walsh provides a brief overview on Family Law Justice System Reforms announced by Minister McEntee on the 29th September 2020 and published as Family Court Bill General Scheme (September 2 2 )

Summary A summary of the reforms announced are as follows: Specific commitments include promises as follows: a. Families to be put at centre of new family law justice system in reforms announced; b. Draft of new Family Court Bill approved by Cabinet Tuesday 29 September, Family Court Bill eneral Scheme (September 2 2 ) published on justice.ie; c. Family law will get new specialist divisions within current Court structure i.e. separate Family Law District, Circuit and High Courts within the current system but with new Family Court procedures with the aim of less adversarial dispute resolution and a new family law rules committee to deal with all family law jurisdictions to ensure consistency of approach; d. Proposal to create new Family Districts and Family Circuits. These new Circuits and Districts may or may not follow the current Circuit and Districts or may create larger family law circuits; e. Family courts to be overseen by a ‘principal judge’ in District, Circuit and High family courts President of each Court still in place f. Specialist knowledge and training now essential for family court udges it must be said many family court judges already have specialist knowledge and training g. A R (Alternative ispute Resolution) and more effective court process part of reform h. Access to supports for families in family law disputes promised. No detail on allocation of resources or specifics on the supports i. Plans for consent cases to be dealt with by the District Court in judicial separation, divorce and cohabitation cases where previously Circuit/High only; j. Greater access to court documents currently restricted by in camera rule which relates to cases before the court; k. Family Justice oversight group chaired by Department of Justice senior civil servant includes judges, Courts Service, Legal Aid Board, Dept. of Children and outh Affairs. No mention of stakeholders or Law Society or Bar Council. 32 the Parchment

Practical changes for Divorce, Judicial Separation and Civil Partnership and Cohabitation cases: • The General Scheme proposes to change the jurisdiction of the courts in judicial separation, divorce and dissolution of civil partnership, cohabitant proceedings, to enable jurisdiction to be exercised by the District Family Court and Circuit Family Court. The District Court may be permitted to rule consent Divorce, Judicial Separation and Cohabitation cases in addition to the Circuit Family Court. • It appears the High Court is losing its concurrent jurisdiction in judicial separation, divorce and dissolution of civil partnership, cohabitant proceedings which it concurrently holds with the Circuit Court.

Positive: (i) Reform needed but also resources . (ii) any proposed reforms are very progressive.

Negative (i) Immediately obvious issues for court users in relation to dealing with more family law cases in the District Court given the already oversubscribed District Court. If consent divorce, judicial separation and cohabitation cases are to be added to the District Court jurisdiction then it is likely to be even more oversubscribed. (ii) iven the length and complexity of most family law disputes appearing before the High Court it would make sense for these cases where value of property involved is in excess of €3 million to remain in the High Court in respect of judicial separation, divorce and dissolution of civil partnership, cohabitant proceedings. Figures from the latest Court Services report indicate that in 2019 only 15 applications for divorce and 23 applications for judicial separation were made in the High Court. (iii)Family ustice versight roup tasked with driving this project of Family Law Reform will be composed entirely of public servants. No N s other stakeholders or members of the Law Society, Bar Council or Family Lawyers Association. Given


Autumn 2020 dsba.ie Keith Walsh is a family law solicitor and author of Divorce and Judicial Separation Proceedings in the Circuit Court: A Guide to Order 59 published by Bloomsbury Professional

Family Law

the importance of stakeholder involvement and transparency in the reform of such an important part of the Courts system it is to be hoped that this Group will be enlarged to include a broader stakeholder representation.

Issues not Raised: • There had been mention of consolidation of the Family District and Circuit Courts outside Dublin in previous publicity but no specific mention of this in the General Scheme. • No mention of Hammond Lane facility in the General Scheme or reports and an update is awaited from the Department of Justice. • No mention of specialist County Registrars for the Family Circuit Courts • Concern about creating a system within a system particularly if an inter jurisdictional rules committee is set up for Family Law which is different from the regular istrict, Circuit, igh Court rules. ne of the very serious issues faced by practitioners and litigants in the family courts is the lack of certainty of outcome in applications for ancillary relief in the context of judicial separation and divorce. In his report for the Child and Family Law Committee of the Law Society published in 2 19, r. eoffrey Shannon recommended that a set of principles for the determination of ancillary reliefs, including all maintenance orders, lump sum payments, settlements, property adjustment orders, and pension adjustment orders be developed in order to provide greater clarity and certainty in the determination of ancillary orders.He went on to state: “These principles, in conjunction with the factors set out in section 20 of the Divorce Act, ought to be referred to in each and every case, albeit not necessarily applied. This would provide much needed clarity and confidence for those seeking a decree of divorce, and also support the judiciary in making decisions.” The search for clarity and consistency in judicial decision making in family law may be provided by a specialist family law division of the judiciary but it is very important to recall that all leading family law judgments in the area of judicial separation, divorce and cohabitation have come from the superior courts and the High Court in particular. The attempted removal of the High Court from these family cases is not a positive development as the High Court has traditionally led the way in clarifying and illuminating family law particularly in the context of judicial separation and divorce. • The lack of resources traditionally provided for family law and the requirement for additional court buildings, staff and expenditure in order to give effect to the proposed scheme mean that these reforms may be a long time in coming. The Law Reform Commission’s Report on Family Courts published in 1996 proposed reforms, many of which never came to pass and some of which appear in the General Scheme e.g. the Law Reform Commission recommended ‘that only those judges should be selected who, by reason of training, experience and personality, are suitable persons to deal with matters of family law;’ The family

Pictured outside the Hammond lane site last December were a group of family lawyers and NGOs protesting against the failure to build proper family courts in Dublin

law Judge as recommended by the new General Scheme should be ‘by reason of his or her training or experience and temperament, a suitable person to deal with matters of family law’. Plus ca change… While it is too easy to criticise the General Scheme, it is a welcome start towards reform. It also represents many years of hard work from Mr. Justice Michael White and the Courts Development Committee of the Courts Service, from John c aid of the Legal Aid oard, onagh uckley and many more in the Department of Justice and Courts Service and the judiciary who never refused to give up on family law reform throughout the years of austerity. Politicians and supporters of family law reform such as Alan Shatter, Frances Fitzgerald, Josepha Madigan, Charlie Flanagan and current Minister McEntee have all been involved. It is now up to the DSBA, Law Society, Bar Council, Family Lawyers Association, FLAC, and all the stakeholders in the family law system of justice to work together to extract the positive elements of the proposed Scheme and to add and improve on it. It is our family law system and we need to ensure that it serves those who matter most first – the families and that it is properly resourced. No article on family law reform can be completed without highlighting the appalling state of the District Family, Circuit and High Courts servicing Dublin. Dolphin House and Chancery Street are unfit for purpose in normal times not to mention in Covid times. Phoenix House is a poor quality premises but has the advantage of large court rooms currently. The Family High Court has still not found a home since it was moved from its own oor at ras Uí Dhálaigh some years ago. The new Hammond Lane Family Justice Complex is needed now more than ever although there is no sign of any work starting soon. P

It is our family law system and we need to ensure that it serves those who matter most first – the families and that it is properly resourced

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Valerie Peart is principal of Pearts Solicitors & Town Agents, Dublin

Town Agency

Town Agents

A Social-Distancing Solution The Town Agent has become the solicitor s best friend particular since Covid-19 struck earlier this year. alerie Peart of the highly regarded firm of Pearts Solicitors explains how the role of Town Agent has moved with the times and is needed now more than ever

In our particular case, as a solicitor firm ourselves, we think like you think, we understand the issues that you face, and each and every day we carry out the same tasks, observe the same regulations, and are governed by compliance matters, just as you are

34 the Parchment

F

or as long as I can remember, Pearts Solicitors and Town Agents have been a presence on the North uays in ublin, delivering legal services to the Solicitors of Ireland, mostly to those outside of ublin, but not exclusively so. In the early days of Town Agency, there was a requirement to have an address within three miles of the Four Courts. No one seems to remember where this requirement came from, or for that matter, where it went, but it is firmly lodged in my mind, and seems to be as good a reason as any for the development of Town Agency services all those years ago. Technology has certainly changed how we do everything, especially since the heady days of the seventies when, as the most unior member of the firm working for my father, enis R. Peart, (the brains behind the Town Agency business), I spent much of my working day cycling around to offices in ublin on a very basic blue bicycle, delivering the ‘services’ as they were called. ocuments can now be served by ocument xchange and even by email. With the emergence of electronic means to carry out so many of the routine tasks of a solicitor, you could be forgiven for wondering why on earth would you need the services of a Town Agent at all And you would be right to ask As a ublin firm of solicitors, you would have even more reason to ask. The answer is simple. As your agent, we see ourselves as an extension of your office. In our particular case, as a solicitor firm ourselves, we think like you think, we understand the issues that you face, and each and every day we carry out the same tasks, observe the same regulations, and are governed by compliance matters, ust as you are. efore taking over as principal of the firm in 2002, when my brother Mr. Justice Michael Peart was appointed as the first solicitor in Ireland to become a igh Court udge, I ran my own private practice, like many of you do, while also juggling a busy home life. I therefore know, and understand only too well the added pressures that can come with this. Following the initial lockdown back in March of this year, firms have had to make necessary changes in how they carry out their work. At Pearts, we have had to adapt too. e are affected by how the Courts Service have changed how they deliver services. We have had to deal with virtual courts and social distancing measures within the actual courts, and at the same time, maintain a safe place for work for all of our staff. ut we have met these challenges. ur staff have willingly embraced the necessary changes and we are confident that we have maintained the high level of

service to which our solicitor clients have become accustomed. The reality of the ‘new norm’, which quite frankly is starting to feel very familiar, is that social-distancing solutions need to be implemented. e consider Town Agents to be ust that – a socialdistancing solution. ne staff member can represent multiple solicitor firms in one Court sitting or can attend for urgent matters by appointment in a public Court office with a variety of documentation to lodge. e believe that firms within ublin, who heretofore may not have considered engaging the services of a Town Agent, should think again. Perhaps you are still working from home, or have had to downsi e, or redeploy existing staff to different areas of work. What you shouldn’t have to do is risk your safety or spend valuable time travelling on a art or Luas to get to the Four Courts, to spend time waiting to be served, or awaiting your allotted hearing time, when you could be back in your office, spending time with your clients and their concerns. Let us do that for you. We are there anyway. We have the necessary knowledge, competency and personnel to tackle all types of work and we are ready, willing and able to help. ur expertise in all areas of legal practice and procedure is widely recognised. As part of our Town Agency service, advice in all aspects of a solicitor s work can be provided by our many staff, who are each expert in their particular field. ery often advice is sought and can be given over the telephone and considerable delays and pitfalls are avoided by consultation with us, in this way. In many instances, precedents can be provided on re uest. In maintaining an optimistic outlook in the midst of this pandemic, it is evident that one ma or upside to all of this societal change is the improvement in a work/life balance. We believe that Town Agency services can assist in helping solicitors achieve a better balance, in knowing that we are just an email or a phone call away to help take care of some of the agonising administrative work that goes into case management. With that in mind, and as a family run business since 1 , I take pride in knowing that Pearts Solicitors and Town Agents has, and will continue to be a trusted resource which helps other businesses continue to be the best that they can be. As the eatles said I get by with a little help from my friends , and we hope you can think of us as your “friends” during these uncertain and worrisome times.

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Retain Juries in Defamation Cases Karyn Harty explains why defamation cases still need juries

W

ith the appointment of a new Minister for Justice, Helen McEntee, defamation reform comes into renewed focus as an item featured in the Programme for overnment. A epartment of ustice Review (the Review ) of the efamation Act 2 9 (the 2 9 Act ), which arose under Section 5 of the 2 9 Act, has been in place since 2 1 but was given renewed energy in 2 19, with a Symposium hosted by the Department which I was privileged to attend. We made submissions to the Review in December 2 1 and uly 2 2 , highlighting a number of aspects of the 2 9 Act and related procedure that re uire attention. These include the lack of effective mechanisms for early resolution of claims; the need for a workable offer to make amends procedure the urgent need for specific treatment of digital content; the fact that the Press Council which was a mainstay of the 2 9 Act had no role in respect of online content providers; and the need for alternative dispute resolution mechanisms to be given formal recognition. With continued exponential growth in digital media there has been a marked increase in the volume of claims relating to online content. Since 2 1 the courts have dealt with a number of appeals relating to damages for defamation, from which it is clear that damages will continue to be assessed at a higher level in Ireland than in other common law jurisdictions because the courts have expressly declined to place any actual or notional cap on damages, although some tempering of awards has occurred. Claims against defendants who are not ‘publishers’ also appear to be on the rise, meaning that the traditional view of defamation litigation as the preserve of newspapers and broadcasters no longer holds, and any reforms

36 the Parchment

need to have regard to broader considerations of freedom of expression, the public interest and reputational protection for those maligned by statements in whatever form. In seminal decisions in ilchrist v Sunday Newspapers the Court of Appeal has confirmed that there is no ‘real and substantial’ tort threshold under Irish law in respect of defamation, while the Supreme Court has cautioned against any notion of a hierarchy of constitutional rights, preferring an agile approach to the harmonious recognition of rights depending on what the administration of ustice re uires in a given case. As O’Donnell J put it: “The Constitution was intended to function harmoniously, and where there were points of potential con ict between the rights and obligations provided for, that should be sought to be resolved without the subordination or nullification of one provision It should be remembered that the essence of constitutional rights is that they call for enforcement precisely when inconvenient, contrary to the wishes of the Government, the clamour of the media, the public mood more generally, and even the personal wishes of udges themselves.” This all forms an important backdrop for any legislative changes. Perhaps the most pressing need arising from these developments is for proper consideration to be given to where to place liability for online content, which has such a crucial role in public debate and moves at a pace which does not lend itself to the provisions of the 2 9 Act. ith moves in the S to reconsider the protections for internet speech there conferred by Section 2 of the Communications ecency Act, and the new security law foisted on the people of Hong Kong which appears to outlaw people even contemplating ‘sedition’, there is a more urgent need than ever before for an informed and careful appraisal of how citizens’ rights can best be protected without sti ing public discourse. Tied to this is how


Autumn 2020 dsba.ie Karyn Harty is a partner at McCann FitzGerald. She specialises in media law. Contributions of Lesley Caplin and Harry Oulton at McCann FitzGerald to this article is acknowledged

to deal with forum shopping, given the increase in claims being litigated here that appear to have no meaningful link to Ireland. Some practitioners are arguing for uries to be removed from defamation actions on the basis that they in ate damages, lead to unnecessary costs and create uncertainty for defendants. Sure, anyone who has been involved in a jury trial knows the highs and lows of trying to convince a jury of the importance of high-brow concepts such as freedom of expression and the public interest. Having had the experience of acting in many jury actions over the years, I am not convinced that abolishing juries will solve these problems, or that it is necessarily going to reset any imbalance between plaintiffs and defendants. Indeed there have been few cases over the years where I would have opted for trial before a judge sitting alone in preference to having the case heard before a jury. A jury has the advantage of, in this jurisdiction at least, being a relatively random collection of ordinary people who are well able to assess credibility, authenticity and attitude. Juries grasp legal concepts pretty well once explained to them. They are also, let’s face it, often far better attuned to and comfortable with digital media, ‘tabloid’ journalism and online forums than some judges might be. There is much that could be done to streamline defamation hearings. Much of the legal argument that takes place at trial could be dealt with ahead of the trial, using mechanisms that are already available such as meaning applications, and re uiring greater precision and detail in pleadings. The sterling efforts of the judge in charge of the jury list to achieve this should be acknowledged and he has done so without having available to him any formal case management measures, or any proper resources to facilitate jury cases getting on for hearing in a timely way. There is

no good reason why case management could not be extended to the ury list, provided that sufficient resources are put in place to make it workable. There is also much that could be done to bring greater certainty to damages, including more overt guidance on the basis for, and scale of, damages awards so that juries go into the jury room well informed as to the options available to them. So many claims now relate partly or exclusively to online content and, aside from the broader uestion of liability for such content, there is a pressing need for a mechanism to facilitate early take down where content is, in fact, defamatory and actionable. As Twitter has suggested in its submissions to the Review, we could learn from the S procedures which provide an early determination process as to whether online content is likely or capable of being defamatory, to facilitate prompt take down where it should properly occur and avoid unnecessary litigation over online content. And mediation, which is well suited to emotive disputes, should be actively encouraged as part of any reform.

Comment It is to be hoped that concrete legislative proposals will be moved forward this year which will strike a balance between the challenges presented by the creation and circulation of content in 2 2 and the entitlement of individuals to vindicate their reputations when they are wrongly maligned. While it may seem counter-intuitive for a media defence specialist to argue for the retention of juries, ultimately I believe their abolition risks giving an unfair disadvantage to media content that does not meet standards of decorum but is nonetheless a crucial part of our society and who we are. P

Defamation

A jury has the advantage of, in this jurisdiction at least, being a relatively random collection of ordinary people who are well able to assess credibility, authenticity and attitude

the Parchment 37


Rob Corbet is a partner and head of the Technology Practice at Arthur Cox. Caoimhe Stafford is an associate in the Technology Practice at Arthur Cox. The authors would like to thank Conor O’Brien for his contribution to this article. This article was first published by the International Masters of Gaming Law

Game On - New Gaming

Laws on the way Rob Corbet and Caoimhe Stafford consider some of the key changes that will be brought about when the aming and Lotteries (Amendment) Act 2 19 enters into force on the 1st ecember 2 2

A

lmost a year after it was signed into law, the aming and Lotteries (Amendment) Act 2 19 (the 2 19 Act ) will come into effect on 1 ecember 2 2 . Among other things, the 2 19 Act will update the significantly outdated pri e and stake limits under the current legislation, and introduce a standardised minimum age of 1 for all forms of betting.

“Unlawful” Gaming nder the aming and Lotteries Acts 195 -2 1 , gaming is defined as playing a game whether of skill or chance or partly of skill and partly of chance for stakes ha arded by the players,” while unlawful gaming” includes any kind of gaming: (a) in which by reason of the nature of the game the chances of all players (including the banker) are not e ual (b) in which any portion of the stake is retained by the promoter or by the banker (other than as winnings) or (c) by means of a slot machine. The 2 19 Act will simplify matters by introducing a cohesive licensing regime for gaming, such that unlawful gaming will simply involve any gaming that is not sub ect to a gaming permit or a gaming licence. As the 2 19 Act does not specifically regulate online gaming, it is expected that operators that are licensed overseas will be able to continue offering online gaming services to Irish customers, sub ect to those contracts and operations not being sub ect to Irish law. 38 the Parchment

Gaming Permits Superintendents of An arda S och na will have a new power to issue permits for on-premises gaming where the maximum stake is 1 and no player can win more than , in a game. The arda Superintendent will be re uired to consider the character of the applicant (or of the person exercising control and management over the applicant where it is a corporate entity), the number of gaming permits already issued in the area, the suitability of the proposed premises, and the kind of gaming that will be conducted, including whether it will be conducted for a charitable or philanthropic purpose. choing aspects of the definition of unlawful gaming under the current regime, a gaming permit cannot be issued to a person: (a) for any gaming in which by reason of the nature of the game, the chances of all of the players, including the banker are not e ual (b) to promote gaming for charitable or philanthropic purposes on the same day or in the same place as gaming being promoted for other purposes or (c) to promote gaming by means of a gaming machine.

Gaming Licences For gaming machines, and all other gaming where the maximum stake is 5 and no player can win more than 5 in a game, a gaming licence will be re uired from the Revenue Commissioners (much as it is today). efore obtaining a licence, the applicant amusement hall must first obtain a certificate from the istrict


Autumn 2020 dsba.ie

Gaming and Lottery

Law

Court. hile the istrict Court will no longer have the power to attach conditions relating to pri e, stake or age limits (perhaps to ensure the harmonious application of the 2 19 Act), it may attach conditions limiting the hours during which gaming can be carried on, restricting the kinds of gaming, and the extent to which particular kinds of gaming may be carried on. As before, the istrict Court may only grant such a certificate where the local authority has passed a resolution to permit amusement halls and funfairs in their area.

is held for the benefit of a charity, the permit holder cannot keep more than 5% of the total proceeds. In contrast with gaming permits, the arda Superintendent will not be re uired to consider the kind of lottery, but they must consider the applicant s character, the number of lottery permits issued in the locality and the suitability of the premises (if any). A register of all lottery permits that have been granted by each arda Superintendent is re uired to be maintained.

Register

Lottery Licences

The Revenue Commissioners will be re uired to create and maintain a register of gaming licences, which will likely be published online in the same manner as the register of licensed bookmakers.

For more significant lotteries (where the total value of all pri es in a week is no more than , , or no more than , for a once-per-year lottery), the operator is re uired to obtain a lottery licence. To obtain a licence, the applicant cannot derive any personal profit from the lottery, every ticket (or the relevant premises) must display the value of each pri e and the name of the intended beneficiary, and of the total proceeds: a maximum of 5% may be allocated to pri es a minimum of 25% must be allocated to charitable or philanthropic purposes and a maximum of 25% may be retained by the licence-holder for promotional expenses. The conditions attaching to proceeds have proven to be the most controversial change, particularly among the bingo industry. The initial draft of the aming and Lotteries (Amendment) ill 2 19 had capped the amount that could be allocated to pri es at 5 %. owever, this was revised due to significant

Lotteries The 2 19 Act will further introduce a coherent licensing and permit regime for lotteries, which are currently allowed only in limited circumstances. hether operators will re uire a licence or a permit will depend on the value of the pri es.

Lottery Permits here a person intends to run a lottery (or several in a week) and the total value of all pri es is no more than 5, , the person must apply to their local arda Superintendent for a permit at least days in advance of promoting the lottery. Tickets for lotteries under a permit cannot cost more than 1 , and if the lottery

here a person intends to run a lottery (or several in a week) and the total value of all pri es is no more than 5, , the person must apply to their local arda Superintendent for a permit at least days in advance of promoting the lottery the Parchment 39


The 2 19 Act will introduce more severe penalties for offences, which include the promotion of gaming and lotteries that are not sub ect to a licence or permit

lobbying from bingo operators and the ingo Players Association, which led to protests outside il ireann. Applications for lottery licences must be made to the istrict Court in which the lottery will be promoted at least days in advance. In deciding whether to grant a licence, the istrict Court will have regard to the applicant s character, the number of periodical lotteries operating in the locality, and the lottery s purpose. The istrict Court clerk will be re uired to keep a register of all lottery licences that have been granted.

Marketing Promotions The 2 19 Act will introduce a very welcome change for brands and marketing agencies who run pri e draws as part of marketing campaigns. Such promotions will not need a licence or permit, provided that the total value of the pri es is 2,5 or less and there is no charge for taking part in the lottery or redeeming the pri e (aside from the purchase price of the product).

Charitable Lotteries In a welcome display of pragmatism, lotteries that are conducted for charitable philanthropic purposes will be exempt from the re uirement to obtain a permit licence, provided that the total value of the pri es is 1, or less, the price of each ticket is 5 or less, the maximum number of tickets sold is 1,5 , and the promoter does not receive a personal profit and has not conducted such a charitable lottery during the previous three months.

Private Lotteries The 2 19 Act is less favourable for societies and workplaces that en oyed private lotteries, as the exemption for such lotteries will be repealed, meaning that they can only proceed sub ect to obtaining a permit or licence. That small charitable lotteries can proceed should fulfil the same recreational need 40 the Parchment

provided that operators are happy to take no share of the proceeds.

Enforcement The 2 19 Act will introduce more severe penalties for offences, which include the promotion of gaming and lotteries that are not sub ect to a licence or permit. A summary conviction will result in a fine of up to 5, , and or imprisonment for up to six months, while a conviction on indictment will result in a fine of up to 5 , and or imprisonment for up to two years. Reduced penalties will apply to individuals who obstruct arda in carrying out their responsibilities under the legislation, and to those who make false statements in applications for licences permits. Interestingly, some prominent private members clubs have announced their closure in the past year due to the strict stake and pri e limits and their uncertain status, having unsuccessfully lobbied to be explicitly excluded from the scope of the 2 19 Act. Although the inister for ustice intimated that the 2 19 Act merely preserves the status uo for such clubs, which are not sub ect to a particular licensing regime,� it is unclear if enforcement activity will align with these statements until specific regulation for casinos is introduced.

Future Developments? The 2 19 Act has been widely described as an interim reform measure, pending a more meaningful overhaul of gambling legislation. Although the new overnment has indicated in its Programme for overnment 2 2 that it intends to establish a gambling regulator focused on public safety and wellbeing, covering gambling online and in person and the powers to regulate advertising, gambling websites and apps,� it remains to be seen if they will achieve this in the context of the Covid-19 pandemic. P


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Winds of Change Brendan O’Connell says the Court of Appeal Judgment as delivered by Mr. Justice Noonan in August 2020 in the case of Emma McKeown v Alan Crosby and Mary Vocella 2 2 I CA 242 is significant in the context of Personal In ury Litigation in this urisdiction

T

he facts of this case are quite unremarkable.

Award of the High Court

The Plaintiff, following a road traffic accident, was awarded at undalk igh Court on the 11th ecember 2 19 the sum of , comprising of 5, in general damages up until that date and 5, into the future, together with agreed special damages in the amount of , , making a total award of , . The efendants in the case appealed the uantum of the award on the basis that it was excessive.

The Facts of the Case The road traffic accident giving rise to these proceedings occurred on the 21st arch 2 1 where it was described the Plaintiff s vehicle had received a significant impact resulting in about , worth of damage to the Plaintiff s vehicle. The airbags in the Plaintiff s vehicle had not activated. Liability was not in issue. The Plaintiff suffered whiplash type in uries from which she recovered within a relatively short period, save and except for lower lumbar symptoms which prevailed over a sustained period up to the date of trial (two years nine months post-accident).

Judicial Acknowledgement of Public Conscience Paragraph 21 of the Judgment to my mind represents the most ground-breaking element of this udgment. udge Noonan overtly addresses what he describes as “widespread public discourse, debate and dispute” in relation to the extent of awards made by the Courts in Ireland and he also indicates that members of society bear the cost of a compensation system whether through the payment of insurance premia in the case of private efendants or taxes in the case of public efendants. This is a clear acknowledgement by a senior member of the udiciary that perceived excessive awards can have a direct affect on society in a context of payment of insurance premia for motor, public or employer s liability insurance. 42 the Parchment

Book of Quantum Traditionally, the ook of uantum, notwithstanding its review in 2 1 , has to a large extent little bearing on awards handed down by the Court in the context of Personal In uries. udge Noonan points out that in the present case, the ook of uantum had a role to play where in uries are uite straight forward and where the in ury falls more clearly into one or more of the defined Categories. e does acknowledge that the ook of uantum, however, has limitation in complex cases with multiple in uries or cases with in uries that it does not capture at all, for example scarring or psychiatric type in ury. udge Noonan in reducing the Plaintiff s award as handed down by the igh Court seems however to rely uite heavily on the ook of uantum suggesting that the Plaintiff s back in ury in this instance fell into the minor category, or at best, between the minor or moderate category, considering that the band of a moderate category is between 21,4 and 4, , udge Noonan made an award for general damages of , reducing it from the initial finding for general damages of 5, . Judge Noonan emphasises the importance of transparency and that a Trial Judge in arriving at an award must have a stated and clear rationale for doing so. oth Plaintiffs and efendants should also be cognisant of udge Noonan s words where he feels that it would assist the Court s considerations to hear submissions from both Plaintiff and efendant as to how the ook of uantum should be applied or whether it should be applied at all.

Draw of Judge Paragraph 28 of The Court of Appeal Judgment addresses the perceived non-uniform application of the law in the handing down of Personal In ury Awards. udge Noonan acknowledges that it is clear that the non-uniform application or the perceived draw of udge, whether it be generous or otherwise, can give potential for in ustice. udge Noonan is of the view that Personal In ury litigation “should not be a lottery” and that Plaintiffs


Autumn 2020 dsba.ie Brendan O’Connell is a partner in the litigation and dispute resolution department at Ronan Daly Jermyn Solicitors

Personal Injury Litigation

and efendants should be entitled to reasonable consistency and predictability and it is on that basis again that the Court of Appeal is in this udgment extolling the virtues of the ook of uantum, or its successor in the form of the awaited udicial Guidelines.

Shortcomings of Plaintiff Whilst the Court of Appeal does not criticise the Plaintiff directly, it is clear that passing references to various matters contributed towards the reduction in the Plaintiff s Award in the Court of Appeal. In the first instance, the Court of Appeal, whilst not saying so in so many words, seems surprised that whilst the Plaintiff attended her P and received pain relieving medication from her P there was no report available to the Court from this medical practitioner. It is also pointed out by the Court of Appeal that the Plaintiff was referred by her solicitor to r. Aidan alsh, Consultant rthopaedic Surgeon at ur Lady of Lourdes ospital in Navan and the Court of Appeal deduced that the Plaintiff saw r. Walsh for Medicolegal purposes only and in fact Mr. alsh had given the Plaintiff no treatment at all and notwithstanding that fact, it was r. alsh s reports that were the only reports available to the Court in relation to the Plaintiff s condition and prognosis into the future.

Take Home Points 1. Given the Ruling of Judge Noonan and various pervious Rulings from the Court of Appeal from the likes of udge Irvine, it would occur to me that the Appellate Court in relation to whiplash type in uries are in many instances reducing awards by a minimum of 5%. 2. Paragraph 21 of the Judgment as outlined above addresses the public concern in relation to perceived excessive awards and there is an acknowledgement now by senior members of the udiciary that this is having a direct affect on society and that going forward, various factors such as fairness and proportionality and the direct affect on society will be taken into consideration. . I feel in this udgment there was also subtle criticism of the Plaintiff in circumstances where she was seen by a Consultant rthopaedic Surgeon within three weeks, to whom she was referred by her solicitor and the sole purpose of her numerous visits to this Consultant Physician was for medicolegal purposes only. er treating GP did not provide a Report to the Court. 4. The Court of Appeal references on numerous occasions in this instance the ook of uantum as being an essential yard stick in cases where in uries are reasonably defined in terms of categorisation, severity and duration, and in such instances, the Court of Appeal clearly favours the hearing of submissions from both Plaintiff and efendant about how the ook of uantum should be applied or whether it should be applied at all in a particular case. n the basis of what we have seen in this particular udgment, one would deduce that the ook of uantum or the udicial uidelines which are to be

introduced in accordance with the udicial Counsel Act 2 19, will play a much bigger role in personal in ury litigation in this urisdiction going forward which undoubtedly would promote consistency in the level of damages awarded to Plaintiffs. It occurs to me that this udgment of the Court of Appeal encapsulates very concisely and accurately the anomalies that exist in Personal In uries Litigation in this urisdiction. It overtly addresses the public concern in relation to the adverse effect that excessive awards for general damages can have on insurance premia. It goes as far as to consider the potential harm that this is doing to society but then provides a solution and a pathway to more transparent and consistent awards, by way of reference to a ook of uantum or udicial uidelines to be more closely followed by members of the Judiciary into the future. Levels of awards are now being pressurised downwards, this is without any introduction of reforms, but simply in my view due to public will and discontent which has now clearly filtered into the conscience and awareness of the udiciary as referenced in the present case. This udgment will be welcomed by efendants and viewed by Plaintiffs with some trepidation. P

Levels of awards are now being pressurised downwards, this is without any introduction of reforms, but simply in my view due to public will and discontent the Parchment 43


Simplified Merger Regime The Competition and Consumer Protection Commission (the CCPC ) has published Simplified erger Notification Procedure uidelines (the uidelines ) which came into effect on 1 uly 2 2 . ohn arby assesses how the uidelines set out the CCPC s simplified procedure for certain notifiable mergers or ac uisitions that clearly do not raise competition concerns in Ireland (the Procedure )

T

he CCPC considers that the introduction of the Procedure in Ireland “will reduce the time and resources needed to review applicable mergers or acquisitions . This will have a positive impact on businesses, as review periods for mergers or ac uisitions which do not raise significant competition concerns will be shorter and the Irish merger control regime “will be less burdensome for notifying parties�. eals may be notified under the Procedure since 1 uly 2 2 . The uidelines closely follow the approach at uropean nion level, where the uropean Commission has identified certain categories of mergers as being unlikely to raise competition law concerns. The notification form will be the same as the standard CCPC erger Notification Form (the Form ), but the notifying parties will not be re uired to complete certain sections of the Form. Following receipt of a notification, the CCPC will endeavour to make a determination as soon as practically possible following the expiration of the deadline for third party submissions. Third party submissions to the CCPC must be made within ten (1 ) working days of the publication of the CCPC s notice of a notification, though the CCPC may change this deadline for third party submissions by notice on its website in individual cases, if circumstances so re uire.

44 the Parchment

Notwithstanding its initial acceptance that a merger or ac uisition is suitable for review under the Procedure, the CCPC may at any point revert to its standard procedure for merger notifications (the Standard Procedure ). This may occur, for example, if new information comes to light which suggests that the notification does not fall within the scope of the Procedure. The framework for assessing a notified merger or ac uisition set out in the CCPC s uidelines for erger Analysis applies regardless of whether a merger or ac uisition is notified under the Procedure or the Standard Procedure.

Simplified Merger Notification Procedure Criteria The CCPC will, in principle, apply the Procedure in the following circumstances: (a) the undertakings involved in the merger or ac uisition are not active or potentially active in the same product and geographic markets, or in any market(s) which is upstream or downstream to a market(s) in which another undertaking involved is active or potentially active (b) two or more of the undertakings involved in the merger or ac uisition are active in the same product and geographic markets, but their combined market share is less than 15% (c) one or more undertakings involved in the merger


Autumn 2020 dsba.ie John Darby is a Consultant at Flynn O’Driscoll Business Lawyers and he is a member of the DSBA Commercial Law Committee

or ac uisition are active in any market(s) which is upstream or downstream to a market(s) in which another undertaking involved is active, but the market share of each of the undertakings involved in each market is less than 25% or (d) an undertaking involved, which already has oint control over a company, is to ac uire sole control over that company. In its consultation document prior to publishing the uidelines, the CCPC noted that applying the uropean Commission s simplified procedure criteria to 219 notifications to the CCPC between 2 1 and 2 1 indicated that approximately 55% of mergers would ualify if those rules were applied in Ireland. It can be expected therefore that a substantial percentage of Irish deals will ualify for simplified notification under the Procedure.

Safeguards and Exclusions General Safeguards In appropriate cases, the CCPC may revert to the Standard Procedure, at any point by: i. Issuing a re uirement for further information under section 2 (2) of the Competition Act 2 2 (as amended) (the Act ) re uiring the undertakings involved to submit more detailed information in

relation to the merger or ac uisition and or ii. Invoking the provisions of section 1 (12) of the Act, declaring the notification submitted under the Procedure to be invalid and thereby re uiring the undertakings involved to submit a fresh notification using the Standard Procedure. The CCPC will decide, based on the facts of the specific case, which would be the most appropriate way in which to revert to the Standard Procedure. To estimate the market shares specified, the undertakings involved will be re uired to identify all potential product and geographical markets which are likely to be impacted by the merger or ac uisition. In this regard, undertakings involved are strongly encouraged to engage with the CCPC in pre-notification discussions to identify all potential relevant market(s). In situations where it is difficult to identify the potential relevant market(s) during pre-notification discussions, the CCPC is unlikely to apply the Procedure.

Concentrated Markets hile mergers or ac uisitions which meet the criteria are unlikely to raise competition concerns, there are situations when the CCPC may decide that such mergers or ac uisitions re uire the more detailed approach that the Standard Procedure

Commercial Law

ndertakings involved are strongly encouraged to engage with the CCPC in pre-notification discussions to identify all potential relevant market(s)

the Parchment 45


The CCPC is unlikely to apply the Procedure to mergers or acquisitions where one or more of the undertakings involved have important pipeline products

entails. For example, mergers or ac uisitions which take place in markets which are already concentrated may raise competition concerns. arket share thresholds may be less indicative of the intensity of competition in the relevant markets. Conse uently, the CCPC is unlikely to apply the Procedure in such cases.

Pipeline Products Similarly, mergers or ac uisitions which involve firms that have potentially important pipeline products will re uire detailed analysis. This may be particularly relevant in digital and pharmaceutical sectors. In these markets, new and innovative firms with important pipeline products are often re uired to merge before they have time to establish a significant market position. A full assessment will be particularly important for these mergers or ac uisitions. The CCPC is unlikely to apply the Procedure to mergers or ac uisitions where one or more of the undertakings involved have important pipeline products.

Mavericks averick firms are those who compete more vigorously, in terms of price, uality or innovation, relative to other firms. A merger or ac uisition involving a firm that acts as a maverick could imply a disproportionate reduction in competition.

Neighbouring Markets

here the firms are active in neighbouring markets, the merger might allow the merged entity to leverage its position into a neighbouring market.

Mergers that involve a change from joint to sole control For mergers that involve a change from oint to sole control, the parent companies might impose constraints on each other and on the ointly controlled undertaking which was, or was soon to be, in competition with the ac uiring shareholder.

Procedural Provisions Pre-merger Notification Discussions Pre-merger notification discussions, though not mandatory, can be beneficial for undertakings involved in clarifying how much information should be included in the Form. The uidelines advise that in order to clarify whether a merger is suitable for notification under the Procedure, parties are “strongly encouraged to engage with the CCPC in pre-notification discussions”. Pre-notification discussions are not currently a prominent feature of the Irish merger control regime, but are very common at the uropean nion level, where notifying parties typically engage in substantial contact with the uropean Commission, including by exchanging drafts of the notification form, before formally notifying a merger. No time limits apply to pre-notification and the legislative review period only begins once the transaction is formally notified. Pre-merger notifications discussions may also lead to a reduction in phase one review time. The CCPC currently facilitates pre-merger notification discussions for all mergers or ac uisitions and has said that it“will 46 the Parchment

endeavour to arrange discussions with parties within two working days from receiving contact”.

Notification and Publication The merger or ac uisition are still to be notified on the Form. owever, parties availing of the Procedure will not be re uired to complete certain sections. Specifically, parties will not have to provide detailed information regarding their competitors, customers and suppliers and therefore the following sections of the Form will not need to be completed: Sections 4.5 to 4.1 – verlapping Products or Services and other relationships. Section . - Further Information and Supporting ocumentation. here parties avail of the Simplified Procedure on the basis that there is no overlap between their activities, the following sections of the Form will not need to be completed: Sections 4.4 and 4.11 – verlapping Products and Services and other relationships Sections 5.1 and 5.2 – iews of the ndertakings Involved This will remove the need to provide detailed information regarding the industry and products concerned, the parties turnover in the State and the market shares.

Determination Process under the Procedure Following receipt of a Form under the Procedure, the CCPC will decide and inform the undertakings involved, as soon as practically possible following the expiration of the third party submission deadline, whether it is appropriate to apply the Procedure or to revert to the Standard Procedure. owever, the uidelines also state that the CCPC will provide an “initial indication” of whether the Procedure is suitable when publishing the notification on its website within seven days of notification. Publication generally takes place within 1-2 days of the notification. If successful, the Procedure should reduce review periods for no-issue Phase 1 deals. The CCPC is re uired to clear mergers within working days of notification, unless it extends this period by re uesting information from the merging parties. Where the CCPC has decided to proceed under the Procedure, it will endeavour to make a determination pursuant to section 21(2) of the Act as soon as practically possible following the expiration of the third party submission deadline. The determination will contain: (a) a summary of the merger or ac uisition (b) a description of the undertakings involved (c) the economic sectors concerned and (d) a statement that the merger or ac uisition has been reviewed under the Procedure and will not in the CCPC s opinion lead to a substantial lessening of competition in any markets for goods or services in the State. iven that a determination made following a review pursuant to the Procedure will be shorter in length than a determination made following the Standard Procedure, it is envisaged that there will be less need for redaction re uests from the undertakings. P


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Significant Security for Costs Decision Angela Brennan examines a recent Court of Appeal decision regarding security for costs that provides important guidance on the factors which the Court will take into account when deciding whether to award security for costs

Introduction Defendants in commercial litigation are often concerned that even if they win and are awarded their costs, they will never recover them from an impecunious claimant. In cases where a defendant believes that the case against it is unmeritorious and that the plaintiff would be unable to meet any award of costs made in its favour, it can ask the court to make an order re uiring the plaintiff to give security for its costs. In this way, security for costs can represent a tactical weapon to deploy by a defendant, by which a defendant can bring pressure to bear on a plaintiff. The recent Court of Appeal decision in proceedings arising out of the collapse of Quinn Insurance Limited provides guidance for parties bringing (or defending) such applications in future and considers the balance to be struck between the constitutional need to ensure access to justice for impecunious corporate plaintiffs with potentially strong claims, and the unfairness of successful defendants finding themselves with a somewhat Pyrrhic victory, unable to recover their own costs of successfully defending the action.

Background and High Court Decision The case of uinn Insurance Limited nder dministration v PricewaterhouseCoopers 2 2 I CA 1 9 relates to a claim against the insurer s former auditor, PwC, for alleged negligence and breach of contract. The High Court had previously refused PwC s application that uinn provide security for its costs pursuant to section 52 of the Companies Act 2 14 (the 2 14 Act ) on the basis that special circumstances existed to justify the refusal. In reversing the decision of the High Court, the Court 48 the Parchment

of Appeal held that the balance of justice lay in granting the order for security for costs in favour of the defendant, PwC. PwC s application was made pursuant to section 52 of the 2 14 Act which gives a Court discretion to grant a defendant security for costs if it appears that: (i) the defendant has a bona fide defence to the plaintiff s claim and (ii) the plaintiff will be unable to pay the costs if the defendant is successful in defending the action. Neither of these factors were in dispute in these proceedings. However, even where these points have been established, a plaintiff may seek to resist a security for costs order by showing, on a prima facie basis, that special circumstances exist which justify the court to exercise its discretion to refuse such an application. In general, the list of special circumstances is a nonexhaustive one and includes the following: (i) where the inability to meet the costs has been caused by the wrongdoing sought to be addressed in the litigation; (ii) the defendant s delay in bringing the security for costs application and (iii) if the proceedings raise issues of exceptional public importance. In this case, the High Court focused on two special circumstances which it found warranted a refusal of the order. These were: (i) the fact that uinn had made out a prima facie case that its inability to discharge costs owed from the alleged wrongdoing of PwC and (ii) that the proceedings raised issues of general public interest and exceptional public importance justifying the refusal of the application.

Impecuniosity Caused by Alleged Wrongdoing of PwC The Court of Appeal focused on whether there was a causal connection between the actionable wrongdoing


Autumn 2020 dsba.ie Angela Brennan is a senior associate in Matheson’s Commercial Litigation and Dispute Resolution Department. She is a member of the Commercial Committee of the DSBA

and a practical consequence or consequences for the plaintiff. aker stated that the causal connection between the actionable wrongdoing and a plaintiff s impecuniosity re uires a plaintiff to establish, on a prima facie basis, a connection between specific losses claimed and the likely inability to meet the costs of a successful defendant. In aker s view, uinn had established, on a prima facie basis, that had PwC identified the likely impact of the combined e ect of the uarantees, the understatement of the technical provisions and the gifts, uinn could have been in a very di erent financial position.” aker . held that the trial udge came to the correct conclusion that uinn had made out a prima facie case that it might have avoided the compounding of its di culties had it known of the risks inherent in some of the commercial choices it made. n that analysis, uinn had discharged the burden of showing, on a prima facie basis, that the losses it says are attributable to the alleged negligence and breach of duty could prima facie have led it to avoid the financial catastrophe that befell it.” Accordingly, the Court of Appeal held that Quinn had arguably met the test that special circumstances exist.

Balance of Justice between the Parties However, the Court of Appeal held that the matter did not end there. espite the finding of special circumstances, the Court held that it needed to find the balance of justice between the parties. The Court held that, even where special circumstances exist, that does not mean that security will inevitably be refused. In reaching the decision to grant the order for security for costs, the Court placed reliance on the fact that the sum of million to be borne by the individual PwC partners was intrinsically unfair”. hile uinn had the benefit of limited liability, PwC did not. The individual partners would be liable for

these enormous costs.” aker also relied on the fact that the granting of security was unlikely to sti e the present claim as uinn had financial backing for its own costs and therefore, the litigation was likely to continue even if security was to be provided.

Exceptional Public Importance The second special circumstance relied upon by the plaintiff was that the case raised issues of exceptional public importance. The Court of Appeal reversed the igh Court s findings that security should not be granted on this basis. The Court held that the public interest had to be exceptional and the plaintiff bore a heavy burden to establish this because the refusal to make an order would deprive a defendant of an order that it would otherwise be entitled to. The Court found that the interests pursued in this litigation were wholly commercial and the fact that the taxpayer or the State coffers may get the benefit of the litigation was not, in itself, a matter that made the litigation one of exceptional public interest.

Conclusion The amount and mode of security has gone back to the High Court for determination and therefore, despite the award of security for costs, the litigation continues. This decision provides useful guidance as to the evidence required to resist an application for security for costs. It also makes clear, even where the plaintiff can establish that special circumstances exist, that does not mean that security will inevitably be refused as the Court will seek to find the balance of ustice between the parties. In finding this balance, the Court is likely to take into account whether such an order would put an end to the litigation. P

Litigation

ven where the plaintiff can establish that special circumstances exist, that does not mean that security will inevitably be refused as the Court will seek to find the balance of justice between the parties

the Parchment 49


Commercial Landlords take heed Ireland reopened for business in Summer 2 2 , after months of being mothballed by Covid-19 restrictions. Neil unne and udith Cryan offer a word of caution for commercial landlords

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onditions remain challenging for many businesses, with reduced capacity arising from social distancing and hygiene re uirements and the potential for further disruption due to the intermittent escalation of local or national restrictions. Tenants of commercial premises may now seek to renegotiate their leases in a bid to reduce costs and share risk with their landlords. Landlords may be reluctant to share the pain but, when considering requests to regear leases, landlords should be cognisant of the restructuring opportunities available to tenants which could result in a very unsatisfactory long term outcome for them. espite the unprecedented economic crisis resulting from the Covid-19 restrictions, there was an effective pause on insolvencies and restructuring of businesses during lockdown. overnment supports, payment breaks from lenders, moratoriums on enforcement, commercial rates waivers, warehousing of tax liabilities and forbearance from landlords provided breathing space for businesses. This is likely to change in the coming months. Tenants may seek to have rent reduced or restructured to a turnover model, with rent

50 the Parchment

suspension to apply if they are ordered to close again due to a second wave of Covid-19. Landlords will review their leases to see what benefits they can obtain in exchange for such concessions. If agreement cannot be reached on regearing lease obligations, the alternative for some tenants may be insolvency or restructuring.

Examinership A company or its directors can apply to the Court to have an examiner appointed. The examiner will examine the affairs of the company and propose a scheme of arrangement designed to ensure survival of the company and the whole or part of its business as a going concern. nce an examiner is appointed, the company has protection from its creditors, who cannot take legal action against the company or petition to have it wound up. If there are arrears of rent or service charge, the liability may be written down significantly in the scheme of arrangement. As part of the examinership process, the company can seek to repudiate a lease of property and set it aside to effectively save profitable parts of the business and save obs. xaminership is often used as a tool for multi-tenanted retailers to effect a restructuring of


Autumn 2020 dsba.ie Neil Dunne is a partner in the Real Estate Group at ByrneWallace Judith Cryan is a professional support lawyer at ByrneWallace

their leasehold obligations, enabling them to o oad unprofitable premises.

Liquidation Li uidators have a similar right to disclaim onerous contracts, which could include setting aside an onerous lease . A very simple example would be a lease with above market rent and upwards only rent review. Typically, if a li uidator has no use for a property, he will seek to negotiate a surrender of the lease. If the landlord will not accept a surrender, the li uidator can go to Court seeking leave to disclaim the lease at any time within the first 12 months of the li uidation. Conversely, the landlord may wish to repossess the premises due to the tenant s li uidation. hile the lease will often entitle the landlord to forfeit the lease on the appointment of a li uidator, the landlord may not act on this right of forfeiture for a period of 12 months, provided the li uidator complies with the terms of the lease, such as payment of the rent. The landlord has to wait for the expiry of the li uidator s year before acting to repossess the premises on the basis that the tenant has suffered an insolvency event.

Landlord and Tenant

Receivership A receiver does not have the right to disclaim or repudiate a lease. The landlord, on the other hand, can generally forfeit a lease on the appointment of a receiver (sub ect to the usual reliefs against forfeiture). This does not affect the ability of the landlord to pursue a guarantor or have recourse to a rental deposit. Both a receiver and a liquidator will be liable for rent and service charge due under the lease only to the extent that they use the leasehold property for the purpose of the receivership li uidation. Any rent arrears which accrued prior to the appointment of the receiver or liquidator will be an unsecured debt and may be written down or rank behind the secured debt claim.

Proceed with Caution The economic climate remains uncertain, as all forecasts come with a second wave caveat. usinesses may take some time to return to profit and there is a risk of rental voids in a stagnant market. oth landlords and tenants should proceed with caution, obtaining strategic advice on lease regearing, insolvency processes and restructuring options before acting. P the Parchment 51


District Court Debt Collection Susan Martin sets out the steps involved in testing and enforcing a debt in the District Court

Taking instructions In taking the instructions, it is important to take a note of all the information surrounding how the debt arose in the first instance. Initially, focus on your own client – are they an individual or corporation If your client is a company, then it is worthwhile checking their correct legal name and designation in the CR (Companies Registration ffice). ow did the debt arise Is your client compliant with Section 4 of the Consumer Credit Act 1995 as the money provided under a contract or supply of goods Is there a retention clause in the contract ou should obtain a copy of your client s constitutional documents and the contract itself. As regards the debtor, what information does the client have about them Is the debtor a corporation or individual here do they live or where is their registered office Again, it is worth checking the CR for precise details on the identity of the debtor. If there are goods involved, has the debtor retained the goods as the debt sub ect to a guarantee At this point, you should recommend to your client the possibility of mediation and provide them with the appropriate information in accordance with Section 14 of the ediation Act 2 1 .

Write the Demand Letter The next step, assuming you have properly identified the amount owed, the creditor and the debtor, is to issue a letter of demand. ou should check with your client whether such a demand has previously been made and if not, then arrange to issue a demand letter. It is worth taking some time to compose this letter – it should give the debtor all the information that they would re uire in order to identify the debt and set out what arrangements could be made in order to pay it. hile strictly speaking not essential, 52 the Parchment

I think it worthwhile to ask the debtor to indicate early on whether there is any issue around the debt or their ability to pay. arly identification of such issues can prevent expensive errors later. ou should ensure that the demand letter does not either ask for or imply that there is a cost to the debtor for the issue of such a letter. any times, on receipt of a letter of demand, the debtor will engage and hopefully avoid the necessity to issue proceedings.

Choose the Jurisdiction The next step, assuming you have had no response or a negative response from the demand letter, is to work out the urisdiction of the court where you will issue proceedings. iven that this article is about debt in the District Court, we will take it that the debt is less than 15, . The next step is to check in which istrict the claim should be lodged. sually, the Claim is issued in the district where the contract was made.

Draft the Claim Notice Like the letter of demand, it is worth taking some trouble over the Claim Notice so that it is really clear who is seeking what debt to be paid and why. The indorsement of claim should fully particularise the debt due and set it out in some detail. For example, if the debt owed was, say, in respect of service charges owed to a management company by an apartment owner, the Claim Notice would set out details of the management company, details of the debtor, the address of the property and how much service charges were owed for each year and over what period of time.

Lodging the Claim Notice As mentioned above, it is necessary for you to provide your client with the appropriate information regarding mediation. At this point you should draft


Autumn 2020 dsba.ie Susan Martin is principal of Martin Solicitors. She is a Council Member of the DSBA

the Statutory eclaration confirming that such advice has been provided. nce the Claim Notice has been issued, using the record number provided, you should then arrange to lodge the Statutory eclaration re ediation.

Serving the Claim Notice Once the Claim Notice is issued it should be served as soon as ever possible, but at the latest before 12 months has expired since it has issued. It should be served in good time to ensure that any issues which arise relating to service can be dealt with. sually the Claim Notice is served by registered post. 11 days after the service of registered post, you should then arrange for the person who posted the Claim Notice to complete a eclaration of Service. Note an Affidavit of Service is also acceptable but this will attract stamp duty whereas a eclaration of Service does not . Nowadays it is possible to obtain details of the tracking of registered post from An Post – that is, they will give a printout showing the date time and sometimes the identity of the person who signed for the envelope. It is good practice to print this and place it on the file. 29 days after service, as an abundance of caution and for best practice, you should send a warning letter, extending the time for entry of the Appearance efence by 14 days and warning that udgment will be obtained in the absence of hearing from the Respondent. This should be sent by certified (ordinary) post.

Preparing the Judgment set If you receive no response from the debtor after 15 days (see step above) and you can prove service of the Claim Notice, the next step is to prepare the Judgment set. The Courts website contains a useful information

Debt

on making an application for udgment in the office. The first document re uired will be an Affidavit of ebt. efore drafting the Affidavit, it is necessary for you to check in with the creditor to ensure that no payments have been made on account or whether some other ad ustment has been made to the file – e.g. a credit note has been provided to the debtor by the creditor or goods have been returned by the debtor to the creditor etc. The Affidavit of ebt, to be sworn by the creditor (or in the case of a company, the director of the creditor) outlines to the Court the service on the Respondent of the Claim Notice and the amount now actually due (taking into account anything to the credit of the Respondent). nce the Affidavit of ebt has come back, sworn from the Creditor, the next step is to prepare to lodge and then lodge the udgment set. ne should take care to progress the matter as soon as possible after the Affidavit of ebt has come back. This is because the application cannot be processed if the Affidavit of ebt is more than one month old. The following are to be included in the udgment set: • Original Claim Notice • Declaration of Service arning letter Certificate of Postage Statutory eclaration re ediation Certificate of No Appearance efence note it is possible to endorse this certificate on the back of the Affidavit of ebt or it can be a separate document Affidavit of ebt • Judgment After the application has been processed, if it is accepted then a Judgment will be obtained at which point the creditor can consider what steps are re uired to enforce the udgment. P

One should take care to progress the matter as soon as possible after the Affidavit of Debt has come back

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Julie Galbraith is a partner in Employment Law Team at Eversheds Sutherland

Employment Law

WRC can hold Remote Hearings inister for nterprise, Trade and mployment, Leo aradkar T last month signed an order (the rder ) authorising the orkplace Relations Commission ( RC) to conduct its hearings remotely. ulie albraith warns that whilst there may be some advantages, there may also be difficulties from a practical and logistical perspective

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he rder appoints the RC as a designated body under the Civil Law and Criminal Law ( iscellaneous Provisions) Act 2 2 (the 2 2 Act ), an act that was introduced to address the challenges faced by the court system and legal system as a result of the ongoing Covid-19 pandemic. The 2 2 Act makes provision for remote hearings, the use of electronic means in civil proceedings and the giving of evidence using video link, among other matters. Section 1 of the 2 2 Act grants the authority for hearings before a designated body to take place remotely. It provides that legislation which refers to the holding of hearings by a designated body will be modified to allow for the holding of those hearings remotely.

Remote Hearings prior to the Order Like most organisations, the RC was locked down for three and a half months earlier this year due to Covid-19 restrictions. This caused a significant backlog in the hearing of complaints which it is now trying to address. In April 2 2 , the RC carried out a broad consultation about the feasibility of remote hearings and other measures to deal with RC complaints during Covid-19. In response to the consultation, the RC conducted trial hearings in ay and began to facilitate remote hearings in uly. The RC had been selecting more straightforward complaints for remote hearings, such as complaints relating to working time, payment of wages and trade disputes. Parties to complaints selected for remote hearing were not obliged to proceed with the hearing virtually and could opt for a face-to-face hearing instead. This presented issues for the RC as the vast ma ority of parties to selected complaints were reluctant to participate in remote hearings. According to the RC, of the complaints selected for remote hearing, only 1 % of parties consented to the remote hearing.

Compulsory Remote Hearings Pursuant to the rder, the RC will no longer need consent from parties to proceed with a remote hearing. This is effective from 24 September 2 2 . The RC has confirmed it will cease seeking consent from parties and it will gradually increase the numbers and types of cases to be dealt with via remote hearing. 54 the Parchment

The power to conduct hearings remotely is not absolute. Section 1(2) of the 2 2 Act provides an exception and states that the authority to conduct remote hearings will not apply if the designated body, of its own volition or following receipt of representations by a party concerned, is of the opinion that it would be unfair to a concerned party or contrary to the interests of ustice.

Implications for Employers The introduction of compulsory remote hearings presents opportunities for parties to RC complaints: irtual hearings will assist to reduce the backlog of complaints and bring about a speedier resolution of disputes. It will enable overseas witnesses to attend hearings where previously they may have been unable to do so due to travel restrictions. It is also unlikely that there will be the same restrictions on the number of individuals permitted to attend the hearing as are in place at present. There may, however, be difficulties from a practical and logistical perspective: The absence of a face-to-face meeting can reduce the opportunities for an on-the-day settlement. • Parties may encounter issues communicating with their representatives during the hearing. hile communication will be possible via mobile devices, it may be necessary to request periodical breaks in order to effectively take instructions. itnesses may be coached, either by individuals off-camera or by reading a script. The effectiveness of examination and crossexamination of witnesses may be impacted as it may be more difficult to evaluate testimony on screen. There are also privacy and data protection concerns. here a hearing is conducted remotely, potentially in multiple locations, the privacy of the hearing is more difficult to police. The RC is mindful of such difficulties and, in its consultation paper on remote hearings, has identified a need to establish procedures to ensure the conduct of remote hearings complies with its obligations to adhere to fair procedures and natural ustice. mployers will need to familiarise themselves with any such procedures if called to a remote hearing and additional preparations will be re uired to ad ust to the new form of hearing. P


Autumn 2020 dsba.ie Niall Michel is a litigation partner in the Public and Administrative law team at Mason Hayes & Curran. Kate Moloney is a trainee solicitor at Mason Hayes & Curran

Litigation

High Court Strike-Off Niall ichel and ate oloney review r. ustice Simmons recent igh Court udgment Law Society v- Daniel Coleman

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n the Law Society of Ireland v Daniel Coleman, 2 2 I C 1, the Court provided guidance on the respective scope of: Solicitors appeals to the Court against findings of misconduct by the Solicitors isciplinary Tribunal (S T), and Solicitors responses to applications by the Law Society for orders imposing serious sanctions, including strike-offs In a udgment likely to apply to all legal practitioners in the future, it confirmed that it can fully re-hear the matter if a solicitor actively appeals, but only review the matter in a much more limited way if he or she only responds to the ensuing strike-off application.

Background ased on S T misconduct findings, the Law Society brought an application to strike r Coleman s name off the Roll of Solicitors. r Coleman did not appeal the S T s findings, but responded to the Law Society s separate strike-off application. An issue was raised as to whether, and to what extent, he could challenge the merits of the misconduct findings in that context.

Role of the High Court hen the S T makes a finding of misconduct and recommends a serious sanction, its report must be brought before the Court by the Law Society under the Solicitors (Amendment) Act 19 (the 19 Act) and an order providing for the serious sanction must be sought from the Court (see In re Solicitors Act 1954 19 IR 2 9). The Court s urisdiction on the application is set out in section of the 19 Act. owever, the matter may also come before the Court by way of a statutory appeal by the solicitor, under section (1 ) of the 19 Act. Therefore, in practice, where a solicitor exercises the statutory right of appeal, there will be two parallel motions before the Court. The Rules of the Superior Courts provide that, in those circumstances, the Court will hear the appeal first (see also section 5(1) of the Legal Services Regulation Act 2 15, which makes similar provision for legal practitioners into the future.) It will deal with the Law Society s application after the appeal is decided, having regard to the outcome of the appeal. In Coleman, the Court discussed its role in the context of both. 1. Statutory Appeal by Solicitor – section 7(13) hen the S T makes a finding of misconduct against a solicitor, that solicitor has a statutory right of appeal to the Court against that finding. The appeal entitles a respondent solicitor to a full rehearing of the matter before the Court. 2. Law Society application to Court to impose sanction – section 8

When the Court hears an application to impose a sanction, its role is much more limited. For findings of misconduct to be set aside in the context of a section review, either the Court itself must independently form the view, or the respondent solicitor must demonstrate, that the findings do not have a “sustainable basis”. This falls short of a full appeal [but] allows for any injustice to be brought to the court’s attention even in the absence of an appeal”. Thus, the threshold test is akin to that in judicial review, and not whether the Court might itself have reached a different conclusion on the merits. If a solicitor seeks to challenge misconduct findings as not having a “sustainable basis”, it must be shown that: n the merits, no tribunal, acting reasonably and applying the correct legal principles, could have reached the finding concerned on the basis of the materials before it, or The proceedings were procedurally unfair or there was an error of law (with the unfairness or error having been material, such that it was capable of a ecting the ultimate outcome) nlike a statutory appeal, a section review will normally be carried out by reference solely to the materials which were before the S T. This is one of the essential differences between a review and a full appeal by rehearing. It is only in exceptional circumstances that the Court will allow further evidence, and it will only go to the narrow issue of the sustainability of the findings.

Conclusion The Court s decision in Coleman serves as a reminder that for a full rehearing on the merits, a respondent solicitor should exercise his or her statutory right of appeal. therwise, his or her ability to uestion misconduct findings will be limited to submitting that they do not have a “sustainable basis”, in response to an application to the Court to impose the sanction recommended in light of the misconduct found. This is a high threshold. oing forward, this also seems to be the case under the e uivalent provisions of the Legal Services Regulation Act 2 15, which applies to all legal practitioners and not just to solicitors. Therefore, while the Court can hear from legal practitioners in relation to its review of recommendations on sanction, this will predominantly be in relation to the sanction itself, and there is only a very limited urisdiction to entertain submissions relating to the sustainability of the underlying misconduct findings. Therefore, legal practitioners should be mindful of the options following a disciplinary process, and the conse uences of the choices they make regarding how they will respond. P the Parchment 55


Wills and Marriage Karl Dowling BL and Susan Martin consider a recent High Court judgment dealing with wills made in contemplation of marriage

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ection 85 of the Succession Act 1965 provides that a will “shall be revoked by the subsequent marriage of the testator, except a will made in contemplation of that marriage, whether so expressed in that will or not.” Of course, since the coming into force of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2 1 (s. 9), a subse uent civil partnership will have the same effect. There has been much udicial interpretation of s. 5 and the words ‘contemplation of marriage’ with the most recent being the decision of r. ustice Allen in the Estate of John McPartlan Deceased 2 2 I C 44 , delivered on the 11th September 2 2 . The facts were that the Deceased made his Last ill and Testament on the 1 th une 2 19 and subse uently, on the th August of the same year married his girlfriend with whom he had been in a long relationship. An application was brought before the igh Court Non-Contentious Probate List by the Deceased’s executor to prove the will, with the respondent being the eceased s wife. vidence was put before the Court (on affidavit) by both parties, which sought to assert the intention of the Deceased and is summarised as follow: • Written instructions given to the Deceased’s solicitor were that his primary aim was to provide for his fianc e. • The Deceased was enthusiastic to set a date for the marriage. • He had taken tax advice, which stated that [i]f you only take one piece of financial advice from me, it should be to marry your fianc e Carol and to do so soon.” The eceased bought himself a wedding ring. • He wrote to his solicitor in the following terms: Carol knows that we will have to rewrite our will after our intended marriage…”

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With the support of his doctors, a senior social worker in Beaumont Hospital, and the Registrar of Marriages, the Deceased obtained an Order of the Circuit Court on the th August 2 19, dispensing with the notice re uirements, and the marriage took place the following day. r. ustice Allen carried out an extensive review of previous authorities, both Irish and foreign decisions and in particular referred to the decision of Neill . in e ’ rien deceased 2 11 4 I.R. , wherein that court took the view that it is sufficient if the evidence establishes that at the time the will was made, the testator actually had or must have had in contemplation a marriage to a particular person. At para , Neill . said: “It is noteworthy that the language used in the section does not mention the word intention’ at all, let alone any specific intention. The section adopts a much broader concept of ‘contemplation’, which persuades me that the legislative intent was that a testator would merely bear in mind or have regard to a particular forthcoming marriage. In this context, of course, it must not be forgotten than the Succession Act, 1965 introduced a number of important safeguards for spouses, specifically s. , which gives a spouse a legal right to one half of the estate if there are no children, and one third if there are children. This statutory right, to a very large extent, replaces and achieves the policy objective underpinning the revocation of a will by a subsequent marriage, as enacted by s. 18 of the Wills Act, 1837, namely, to protect the position of dependent spouses in the event of the death of the other spouse having made a will prior to the marriage which fails to make adequate provision for the dependent spouse.” In admitting the will to proof, r. ustice Allen took the view that: “Since the exception which is made is for a will made in contemplation of a marriage that later takes place, the


Autumn 2020 dsba.ie Karl Dowling BL is a practising barrister and co-author of Practical Probate (Thomson Reuters 2020) with Susan Martin who is the principal of Martin Solicitors. She is a Council Member of the DSBA

marriage contemplated can only be that which has subsequently taken place, and not a marriage such as that contemplated by Miss Jane Austen in the opening line of Pride and Prejudice…The particular marriage must be marriage to a particular person and although the evidence is that the deceased in this case did there is no requirement that the contemplation should extend to marriage on a particular date, or within a particular time.” Furthermore, the court most helpfully formulated ten principles to consider when reviewing a will after which the Testator married, as follows: 1. The position of wills made in contemplation of marriage being an exception, the rule is that a will is revoked by a subse uent marriage. It follows that the person relying on the exception carries the onus of proof. 2. That onus is to show that the will was made in contemplation of a particular marriage, which is the subse uent marriage in contemplation of which the will was made. . It is sufficient to show that the testator had, or must have had, in contemplation marriage to a particular person. That re uirement is that the testator should have borne in mind or have had regard to a particular marriage. 4. There is no re uirement that the contemplated marriage should have been the motivating factor in the making of the will. 5. There is no re uirement that the testator s contemplation of the marriage should be expressed in the will. . The re uirement that the will should have been made in contemplation of “a particular marriage” means a marriage to a particular person. hile wedding arrangements may provide evidence of the contemplation of marriage, there is no

re uirement that a date should have been fixed, or any arrangements made, or that notice should have been given. The relevant contemplation is the contemplation of a marriage, not of a wedding. . The survival of the will is a conse uence of the application of section 5. There is no re uirement that the testator should have intended that the will should remain valid notwithstanding the contemplated marriage. y the same token, any belief on the part of the testator that the will would be revoked by the marriage is not inconsistent with its having been made in contemplation of marriage. . There is no re uirement in the section that anyone other than the testator should have contemplated the marriage. 9. hile it will readily be concluded that a testator who has a short time before making his will given notice of his intention to marry had that marriage in contemplation, that is not definitive. 1 . An engagement to be married is an agreement to marry. It is a matter of fact whether a will made by an engaged person is made in contemplation of marriage. In practical terms, this decision highlights the importance of properly advising a client as to the effect of a subse uent marriage (or civil partnership) on an existing will and a failure to do so on the part of a practitioner could very well result in an action in negligence. hen making a will for a person who is engaged it might well be prudent to include a clause such as the following: This ill is made in contemplation of my forthcoming marriage to . P

Wills & Probate

This decision highlights the importance of properly advising a client as to the effect of a subse uent marriage (or civil partnership) on an existing will and a failure to do so on the part of a practitioner could very well result in an action in negligence

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Therese Chambers is an associate in the Employment & Benefits Department at William Fry. Ruth Fahy is a trainee solicitor at William Fry

Employment Law

‘Moonlighting’ on the Job Therese Chambers and Ruth Fahy outline how the High Court recently addressed the issues of whether dismissal was proportionate in a case involving ‘moonlighting’

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n the High Court case of Transdev Ireland Limited v- Michael Caplis (2 2 ) I C4 , Ms. Justice Humphreys upheld a Labour Court decision ordering the re-engagement of a Luas driver, who had been dismissed for ‘moonlighting’ as a taxi driver.

What is ‘Moonlighting’?

The Court’s decision calls into question the ability of an employer to rely on a “zero tolerance policy” regarding occasional additional work without having regard to the reasonableness of the sanction in all the circumstances

The term “moonlighting” is used to describe a situation where an employee undertakes additional work outside his her primary source of employment, effectively double obbing. hilst there is no specific legislation prohibiting moonlighting, usually employers will prohibit employees undertaking outside work through their contract or policy documentation. Moonlighting can give rise to concerns from an employer’s perspective, ranging from health and safety risks due to fatigued employees to other concerns such as poor performance and inadequate rest periods which may breach working time legislation. These issues are further detailed in our article here.

What happened? Transdev Ireland (Transdev), the Luas operator, discovered through a private investigator that their driver, r Caplis, was moonlighting by night as a taxi driver. Transdev dismissed him for gross misconduct. Mr Caplis’ contract with Transdev expressly prohibited him from engaging in other paid employment without his employer’s permission. Mr Caplis took an unfair dismissal claim to the orkplace Relations Commission ( RC) arguing that he only occasionally worked as a taxi driver and such activity did not breach his employment contract. Transdev defended its decision to dismiss, pointing to the safety-critical nature of the role of a Luas driver. The WRC agreed with Transdev.

Appeal to the Labour Court Mr Caplis appealed this decision to the Labour Court in 2 19. The Labour Court, in overturning the RC decision, found that r Caplis had been unfairly dismissed and ordered his re-engagement, with his absence to be deemed a period of unpaid suspension. It was held that dismissal for breaching the policy against engaging in other paid employment, by occasionally moonlighting as a taxi driver, was a disproportionate response by Transdev.

Appeal to the High Court Transdev appealed this decision to the High Court (Court) on a point of law pursuant to section 1 A of the nfair ismissal Acts 19 – 2 15 ( Acts) and section 4 of the orkplace Relations Act 2 15. The grounds of appeal were as follows: 58 the Parchment

1. The Labour Court had failed to rationally address the relevant law (specifically section 6 of the UD Acts) The Court ( umphreys ) accepted that the Labour Court had omitted to include an analysis of the relevant statutory provisions or related case law in its determination. owever, the Court concluded that such omission was “a harmless error on these particular facts” and that to “cut to the chase” of the matter was not fatal to its finding. 2. The Labour Court had failed to rationally address the relevant facts of the case The Court acknowledged that it may not have found the actual dismissal in this instance unfair, however the task of the Court was to review the legality of the decision taken by the Labour Court. ltimately, the Court found that the Labour Court had correctly analysed the relevant safety issues, railway safety legislation and the key elements of evidence. The Court acknowledged that it is “always possible to suggest that a decision could have been more detailed or more reasoned, but what a losing party is entitled to is the gist of the reasons which, in this instance, was provided by the Labour Court. . The Labour Court had failed to provide adequate reasons for the re-engagement order The Court concluded that re-engagement after an unfair dismissal does not require any express ustification because it ows naturally from the finding of an unfair dismissal itself. The Court observed that things might have been different if Transdev had made a detailed fight on the issue of remedy or submitted evidence that re-engagement would have been “disruptive”. The Court dismissed Transdev s appeal and affirmed the re-engagement of r Caplis.

Key Take-aways for Employers Proportionality of sanction – the spotlight in this case is on proportionality of sanction. The Court’s decision calls into question the ability of an employer to rely on a “zero tolerance policy” regarding occasional additional work without having regard to the reasonableness of the sanction in all the circumstances. Working time obligations - employers should ensure employees’ hours and rest breaks are in line with working time legislation. Keep adequate records. This is especially relevant in the Covid-19 era where it can be difficult to record hours and breaks where employees are working remotely. ppeal to the igh Court – The decision highlights the importance of employers adequately addressing before a court, the remedies available to a potentially successful employee. An employer may argue, where relevant, that re-engagement may be disruptive to the firm or be more appropriate than compensation. P


Autumn 2020 dsba.ie

In Practice

DUBLIN CIVIL CIRCUIT COURT OFFICE Currently the office operates an open appointment slot between 9.45-1 .15 every morning for practitioners to attend and complete ex-parte applications for Court. ou

ust need to attend the office to complete an ex-parte docket which will then be provided with an allocated date and time slot. Check in advance by email as to whether the ex-parte

docket attracts stamp duty. Some are 25, some and some none. The email address is dublinciviloffice courts.ie Barra O’Cochlain, DSBA Litigation Committee

IMPORTANT NEW PRACTICE DIRECTION: WARD OF COURT’S MEDICAL AFFIDAVITS / REPORTS The President of the igh Court has issued an important new Practice Direction relating to affidavits and medical reports grounding wardship applications. The current rules of Court and the current forms do not include guidance for medical reports or affidavits exhibiting such medical reports. Therefore, this is a very welcome Practice irection. As this Practice irection constitutes a significant change to the format of, and time limits for,

medical affidavits and reports, it is set out in full below. The timelines re uired in relation to reports are clarified in that the examination of the person must have taken place within three months of the petition and the affidavit to accompany the report must be sworn within one month of the examination of the person. Significantly, more detailed information is sought from the medical practitioner regarding

the scope of their examination of the person and the evidence of the persons inability to manage their affairs and the nature of the respondent s illness condition. Practitioners should note that medical affidavits and reports will not be accepted unless they comply with the Practice Direction. Áine Hynes Chair Mental Health & Capacity Committee

AFFIDAVITS OF MEDICAL PRACTITIONERS SUPPORTING A PETITION Practice Direction Ward of Courts I, Mary Irvine, President of the High Court, hereby issue the following Practice Direction in accordance with s.11 (12) of the Civil Law and Criminal Law ( iscellaneous Provisions) Act 2 2 . This Practice irection, which concerns the content of medical affidavits medical reports in relation to Wardship Proceedings, will come into force on 5th ctober, 2 2 . The following information must be included in the affidavit and or medical report of any registered medical practitioner whose evidence is to be relied upon to support a petition presented under the Lunacy Regulation (Ireland) Act 1 1. (1) The date, place, duration and circumstances in which the medical examination was carried out. (The examination should have been carried out within three months of the presentation of the petition). (2) The nature and duration of any prior relationship between the medical practitioner and the respondent. ( ) The nature of the examination carried out and details of the test and or capacity tools deployed for the purpose of concluding whether the respondent is or is not of unsound mind and incapable of managing their affairs. (4) hether in the opinion of the registered medical practitioner, the respondent is or is not of unsound mind and incapable of managing their affairs. (5) here the medical practitioner is of the

opinion that the respondent is of unsound mind and incapable of managing their affairs i.e. lacks capacity, he she should state: (i) the nature of the respondent s illness condition; (ii) the likely date of onset of that illness condition; (iii) the symptoms pertaining to that illness condition; (iv) the evidence relied upon in making their diagnosis; and (v) whether the illness condition is permanent or likely to improve.

( )

here a medical report is prepared containing the above information, any verifying affidavit sworn by the medical practitioner need only affirm the content of the medical report. The medical practitioner is not required to set out seriatim in their affidavit the information contained in their report. ( ) Any such medical affidavit must be sworn within one month of the date on which the medical examination was carried out and the jurat must comply with S.I. 95 of 2 9.

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Fergal Mullins is a solicitor on the Healthcare team at Hayes Solicitors

Litigation

Out of Time? Fergal ullins outlines how the igh Court recently considered what special circumstances apply in seeking leave to extend time for service of a Personal In ury Summons

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he recent igh Court decision in the case of Brereton v The Governors of the National Maternity ospital rs [ ] IE C ( rereton ) provides up-to-date guidance on the Courts interpretation of recent amendments made to rder , Rule 1 of the Rules of the Superior Courts. The decision is of particular interest in relation to the courts interpretation of the necessity on the part of the Plaintiff to show “special circumstances” when seeking leave to extend time for service of a Personal In ury Summons ( Summons ).

1. Renewal of Summons y way of background, a Summons must be served within 12 months from the date of issue, in accordance with rder of the Rules of the Superior Courts. If the 12-month time frame expires before service has been effected, the Plaintiff may bring an application to the igh Court seeking leave to extend time to renew the Summons. In Brereton, the Plaintiff alleged medical negligence on the part of the efendants prior to and during the birth of her child on 2 February 2 1 . The Summons was not served on the efendants within the re uisite 12-month period. The Plaintiff therefore made an application seeking leave to apply to renew the Summons, ten weeks after the Summons should have been served. Following the granting of the renewal application by r ustice arr, the efendants sought to appeal the decision.

2. Special Circumstances v Good Reason Test n appeal, the matters in respect of which the recently established “special circumstances” test (as provided for by rder Rule 1(4) of the RSC) apply were disputed by the parties. The Plaintiff asserted that the “special circumstances” test replaced the previous “good reason” test, meaning that a court now has to be satisfied that there are special circumstances to ustify a renewal. Conversely, the efendant, citing the decision in Ellahi v. overnor of Midlands Prison [ ] IE C , contended that the Plaintiff must satisfy a two part test, namely to show special circumstances ustifying an extension of time to seek leave to renew the Summons but also to show “good reason” to ustify the renewal of the Summons. In delivering the igh Court s udgment, s ustice yland conceded that the wording of the new rule was ambiguous. owever, she contended that the disagreement between the parties was somewhat academic as both parties acknowledged that the “special circumstances” test places a higher bar on the Plaintiff than the previous “good reason” test. 60 the Parchment

ltimately, s ustice yland endorsed the two-part process, following the above-mentioned Ellahi case, and applied the good reason test to the renewal of the Summons. In so doing, however, the Court outlined that in this case, the special circumstances that ustified the extension of time to bring the application for renewal were the same circumstances that ustified a renewal of the Summons, regardless of whether the special circumstances or good reason test was applied.

3. Interpretation of the Special Circumstances Test s ustice yland examined why the Plaintiff failed to serve the Summons on time. She found this arose due to inadvertence on the part of the Plaintiff s solicitor, rather than the necessity to await further medical reports, as had been averred to by the Plaintiff s solicitor. Justice Hyland noted that it was clearly intended to serve the Summons on time, as illustrated by the Plaintiff s solicitor s letter to the efendants on 1 arch 2 19, days before the expiry of the 12-month service period. Furthermore, the application for renewal was made 1 weeks after the period for service expired, which was considered to be “at the lesser end of the spectrum” compared to the cases of Chambers v enefick 2 IR 52 and Roche v Clayton 199 1 IR 59 which involved delays of months and over 5 years respectively. s ustice yland noted changing the applicable test to “special circumstances” would mean much shorter periods of delay are likely to be treated as sufficient to ustify a refusal to renew a Summons. It was also indicated that had the period of delay been longer by even a month or two she would have been inclined to alter her approach. Nonetheless, the Court held that a ten-week delay in the context of a 12-month period, was sufficient to find that the balance of ustice favoured upholding the decision to renew the Summons.

4. Comment The udgment is useful guidance on the applicable test and also in respect of the circumstances in which a renewal application is likely to be successful or not. The udgment rebuffs the proposition that inadvertence on the part of a legal advisor cannot be a “good reason” or less still a “special circumstance” to ustify an extension of time for renewal of a Summons. The udgment also, however, suggests that each case must be assessed on its merits and factors such as the circumstances surrounding any inadvertence, the length of the delay in making the renewal application and the possibility of pre udice being caused to a efendant warrant due consideration in considering any such application. P


Autumn 2020 dsba.ie Gerard Kelly is head of the Intellectual Property Law team at Mason Hayes & Curran

Litigation

Finding the Culprit Indentifying the ‘keyboard warrior’ in an anonymous defamatory internet post can be a challenge. erard elly explains the nature of a Norwich Pharmacal application which can unveil such hidden identities

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orwich Pharmacal relief was coined from the UK case of Norwich Pharmacal v Customs and E cise Commissioners C . orwich Pharmacal relief has, in recent years, become a valuable tool in the commencement of litigation and increasingly popular in the field of online defamation. The internet has become the chosen platform for many individuals who seek to remain anonymous, while at the same time, spreading hate speech, harassing and/or defaming others. As a result, these orders are commonly sought from internet service providers in order to disclose the identity of the wrongdoer. We are regularly instructed in the defence of these applications by internet service providers and we have seen a marked increase in their popularity in recent years.

this relief in Ireland has been acknowledged by the Supreme Court.

The Nature of the Relief

Requirement to Prove Legal Wrong

A Norwich Pharmacal order is an order made by the Court which compels the respondent to disclose certain information or documents to the applicant. This form of order is primarily sought as a means of identifying the appropriate defendant to an action or obtaining information which is required to plead a claim. It is commonly sought against an innocent intermediary who, although not directly involved in the offending activity, holds information or documentation required for the issuing of proceedings. Norwich Pharmacal relief is an equitable remedy and is not expressly provided for under any Court rules or legislation in this jurisdiction. This means that the Court will grant Norwich Pharmacal relief on the basis of its inherent jurisdiction and only where it is deemed necessary and where the interests of justice require it.

It is essential, when seeking such relief from the Court, that the applicant prove that they have suffered a legal wrong. The Irish Supreme Court ( oyle v The Commissioner An arda S och na 1999 1 IR 249) has stressed that this type of relief is not akin to an interlocutory motion for discovery, which can rely on assertions or hearsay. Evidence and agreed facts must be brought to the table. Therefore, in the absence of concrete evidence of a legal wrong, Norwich Pharmacal relief will not be granted.

The Norwich Pharmacal case The plaintiffs in this case were confident that their patent was being infringed by illicit importers. They sought to bring proceedings against the Customs and Excise Commissioners for the purposes of revealing the names of the wrongdoers. The Court held that a party is obliged to disclose the names of third parties who have committed a wrong if they have facilitated the wrongdoer, even in circumstances where their conduct or connection to the third party’s alleged wrongdoing is entirely innocent. The availability of

The Test The test which was set out in the above case allows the Court to grant the order if the applicant can demonstrate the following: • A reasonable basis to allege that a wrong has been committed • The disclosure of information or documents from the third party is required in order to enable action against the wrongdoer The respondent is sufficiently involved in the wrongdoing so as to have facilitated it, even if innocently, and is in a position to provide the required information, and • The order is necessary in the interests of justice

Conclusion Norwich Pharmacal relief is an invaluable tool in the process of identifying and seeking recourse against wrongdoers particularly in the online sphere. Online defamation has become an increasingly regular occurrence in our society. As such, it is likely that Norwich Pharmacal relief will continue to play a significant role in aiding claimants to identify the relevant wrongdoer for the foreseeable future. However, it should be borne in mind that a legal wrong must be proven to the Court in order to be granted such relief. From experience, it also appears prudent that applicants should first check that the relevant intermediary is potentially in a position to comply with any order sought, particularly regarding accurate identification of specific pages or posts, as such pre-action correspondence can save significant time and money for the parties and be of assistance to the Court. P the Parchment 61


Call for firms to join Pro Bono Pledge Pro ono Pledge Ireland is the first collaborative effort in this country to articulate the shared professional responsibility of lawyers to promote access to ustice and provide pro bono legal assistance to those in need. The Pledge was developed by an independent grouping of law firms, barristers and in-house legal teams with a presence in the Republic of Ireland who have come together to affirm their commitment to delivering pro bono services. The Pledge is coordinated by PILA (the Public Interest Law Alliance, a pro ect of FLAC). This initiative is running in tandem with a new pro bono condition that was introduced into public tenders for legal services by the ffice of overnment Procurement in March.

ue to be launched in November 2 2 , the Pledge provides a common definition of pro bono, a commitment to an aspirational target of 2 pro bono hours per lawyer per year and a mechanism to benchmark progress through annual reporting of anonymous pro bono data. nder the Pledge, pro bono legal services are focused on the unmet legal need of low income, disadvantaged or marginalised individuals or communities who are left behind by the current ustice system, and the organisations that work with them. This need has become particularly urgent in light of Covid-19, where PILA has seen a 5 % increase in demand for pro bono legal services from its N partners. The Pledge promotes an aspirational target of 2 hours per lawyer per year

New Podcast The Legal Lunch A new legal and business podcast has recently been launched, featuring many of Ireland s leading lawyers as well as service providers to the profession. The Legal

62 the Parchment

Lunch, hosted by Padraic rennan, anaging irector of rin Research, is aimed at anyone operating in the legal community in Ireland and is set in an informal interview-style format. e decided on a more relaxed, informal approach to The Legal Lunch, where we can get to know the person behind the brand. e ve tried to stay away from the corporate feel and keep it a little more personable, says rennan. Podcasting has become ever more popular of late as a means to communicate with your desired audience, and rennan thinks this is an opportunity for legal practitioners to get their message out into the world. e are presenting a platform to lawyers and legal service providers to talk directly to their peers and customer base. It is an opportunity to share their knowledge with colleagues and showcase their brand and business as they see fit, says rennan. It also gives interviewees

averaged across a law firm as an appropriate minimum commitment. The establishment of a concrete, uantifiable goal will assist the legal profession in communicating support for pro bono and measuring pro bono activity. The Pledge recognises that Signatories will achieve the target within different timescales and that some Signatories may set higher pro bono hours targets. The intent is to collaborate to achieve the target, while respecting that substantial differences will exist between Signatories as regards their current levels of pro bono activity. In order to become a Founding Signatory of Pro ono Pledge Ireland, please visit www.probonopledge.ie or contact Rachel Power at rachel.power ac.ie

an opportunity to discuss the topics they are passionate about in an open and friendly environment. hile podcasting is a world away from rennan s day ob as a probate genealogist, he en oys the creative side of the recording and editing process. I have a mobile recording studio, which enables me to visit my guests at their preferred location, and I edit, mix and master the material myself in my spare time. uests for the Legal Lunch in ctober include well-known solicitors ohn eary of . . eary Solicitors ( ditor of the Parchment), Flor cCarthy of cCarthy Co Solicitors, Lisa c enna of c enna Co, and avan all, former barrister and solicitor turned serial entrepreneur. e have a good mix of guests that will hopefully be of interest to the profession. I m a firm believer in sharing your experiences to inspire others and hopefully The Legal Lunch will do ust that, especially during these continually difficult times, says rennan. The Legal Lunch can be found on all main podcasting platforms including Spotify, Apple Podcasts and oogle Podcasts. If you would like to nominate a colleague or enquire about being a guest on The Legal Lunch, please contact Padraic Grennan at info@erinresearch.ie


Autumn 2020 dsba.ie

News

2021 DSBA Annual Conference – Lisbon, Portugal The S A has announced that its Annual Conference will take place between the 1 th and 19th September 2 21 in the Portuguese capital of Lisbon. The five-star Tivoli Avenida Liberdade otel has been chosen as the venue to host the expected large group of ublin solicitors and their

partners for this three-day event. In addition to the business and CP seminars that will take place over the long weekend, delegates will be able to en oy a visit to the N SC orld eritage site Sintra for a guided tour of Palacio Nacional – located km from Lisbon. Another

optional tour will include the eronimos onastery A ala inner is scheduled for the Saturday night at Casa- useu edeiros e Almeida. Booking forms are available online at www.dsba.ie

www.dsba.ie See our regularly updated website which publishes useful information for members concerning, amongst other things, professional and social material.

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Closing Argument Stuart Gilhooly

Stuart Gilhooly is a former President of the Law Society and DSBA. He is a partner at HJ Ward Solicitors, Harold’s Cross and former editor of the Parchment

Many of us were here eight years ago when we thought we could never survive the double whammy of a recession and an insurance crisis

Staying Alive T he new normal. As recent mindless non sequiturs go, it’s probably the most ubiquitous and most infuriating. There is nothing normal about our current reality, it’s not even that new. A world in which we can’t interact daily with other people, travel any reasonable distance or even go to a pub without wearing two coats is never going to be normal, no matter how long this pandemic persists. Nonetheless, no amount of complaining is going to make it go away any time soon, so we have had to adapt our lives and make the best of it. How does this work though in a legal profession which has for centuries relied on physical courtrooms and actual documents which must be signed in ink and in the presence of others? The answer is with great difficulty but every problem has a solution. Litigation has probably suffered the most. Every case has at least two parties with often opposite motivations. It can frequently suit one of the parties, either the defendant or respondent, to delay the resolution indefinitely. It is the setting of a court date for hearing that often brings about finality. hile mediation can play an important role, it only works if both parties wish to settle and this is usually when either a court date is looming or costs are spiralling.

64 the Parchment

The Court Service is providing as good a service as is possible in all the circumstances but through no fault of anyone, only so many cases can be heard and the same applies to interlocutory matters which are necessary to bring matters to a head. As a result, court dates are either hard to attain or necessarily delayed well beyond the usually efficient timelines prepandemic. This can mean no impetus to settle. Ultimately, it is a matter for us to be as pro-active as we can to settle those matters that can be resolved. Others may have to run and this is inevitable but picking up a file and either persuading counsel to contact their opposite number or doing the same yourself has not just become an option but a necessity. Other forms of transaction can be handled by email but in a world where we are still some years away from e-conveyancing and e-signatures will often not suffice, clunky solutions must be found. Affidavits can be sworn remotely though it is necessary to still witness a signature and have both deponent and witnessing solicitor physically sign the document. The sooner this archaic and utterly pointless tradition is abolished the better but for the foreseeable, document swearing in

whatever form we can manage will remain with us. The big issue facing us all though is survival. A challenging insurance renewal is the last thing we need but like all perfect storms, there is no shelter from it and increased premiums are coming for most of us. It is a very stressful time for so many reasons but the only option is to battle on. Many of us were here eight years ago when we thought we could never survive the double whammy of a recession and an insurance crisis. The effects of both were worse than what we currently have (though this may yet deteriorate considerably) and we survived. There will be more sleepless nights before this is over but it is the only show in town. nless you can afford to retire or have another job to go to, this has to work. So, we have to be creative. et out that fish file which has moss growing on it on the oor and move it on. Close the sales a little bit quicker. Call your colleague to settle a case you think can’t be settled. You might be surprised. Send out that bill on a file you finished months ago but didn t have time to invoice. Very few will look back on these days with fondness but set two attainable goals. Stay alive and stay in business. You could do worse. P


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