Parchment Autumn 2021 by 256 Content

Parchment DSBA.IE

the

D UB LIN SOLICITORS B AR ASSOCIATION MAGAZ INE | AUTUMN 2021 | ISSU E 89

GENDER PAY GAP LAW New legislation enacted

LAW SOCIETY PRESIDENT JAMES CAHILL INTERVIEWED ACCESS TO JUSTICE? NOT FOR VICTIMS OF MINOR PERSONAL INJURIES

We let our software do the talking.

With a dedication to customer-focused development and an unrivalled commitment to innovation LEAP provides forward-thinking practice management software perfectly attuned to the needs of law firms. Invest in the best.

leapsoftware.ie

Autumn 2021 dsba.ie

From the Editor

elcome to the Autumn Edition of the Parchment. A new legal year has just begun and there is much to be optimistic about, given that many of the Covid restrictions have now eased. The profession has shown great ﬂexibility and resilience over the past 18 months as its members have embraced so many enforced changes, including remote hearings. As a practitioner in the West of Ireland, I cannot tell you how much time I have saved by simply logging on to my PC for Court rather than making a seven-hour round trip to the Four Courts. Yet despite many good news stories, there are some concerns arising from the ashes of Covid. The exceptionally long delays at the Dublin Circuit Civil Court for the hearing of Motions is deeply worrying. Litigants should not have to wait 18 months for a Motion to be heard. Every eﬀort should be made by the Courts Service to help alleviate this backlog which is stymieing business in the Dublin Circuit Civil Court for all.

The introduction of new statutory instrument SI490 of 2021 will have profound changes on litigants in the Superior Courts. See Page 60 for further information. The introduction of “Unless Orders” for Default Appearance, Default Statement of Claim and Default Defence as and from the 13th November 2021 will add signiﬁcant pressure on many litigants and their solicitors. DSBA President Joe O’Malley has been at the helm of this organisation over the past 12 months. His leadership skills, innovation and steady hand has seen him guide the DSBA through the choppy waters of late 2020 and 2021. Diego Gallagher shortly takes up the DSBA Presidency and a bright and positive year ahead awaits him. I would like to wish Joe O’Malley every success for the future and congratulate him on a successful year as President of this great Association. John Geary jvgeary@gmail.com

DSBA COUNCIL 2020/2021

JOE O’MALLEY DSBA President

DIEGO GALLAGHER DSBA Vice President

MATTHEW KENNY Treasurer

PAUL RYAN Chair of Commercial Law Committee

JOAN DORAN Chair of Mental Health & Capacity Committee

GERARD O’CONNELL Chair of the Parchment Committee

AVRIL MANGAN Chair of Family Law & Minors Committee

SUSAN MARTIN Honorary Secretary

NIALL CAWLEY Programmes Director

KILLIAN O’REILLY Chair of Litigation Committee

RONAN McLOUGHLIN Chair of Property Law Committee

CIARA O’KENNEDY Chair of Employment Law Committee

TOM O’DWYER

JESSICA HICKEY

CIARA HALLINAN

The DSBA has moved…. After several years on Dawson Street, the Office of the DSBA has moved to the Capel Building, Dublin 7. Please note our new address and DX below:

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 COPYRIGHT The Dublin Solicitors Bar Association

PUBLISHED BY The Dublin Solicitors Bar Association, Unit 206, The Capel Building, Mary’s Abbey, Dublin 7 DSBA OFFICE, T: 01 670 6089 F: 01 670 6090 E: maura@dsba.ie DX 200206 Capel Building W: www.dsba.ie ADVERTISING ENQUIRIES Sharon Hughes T: 086 871 9600

The DSBA, its contributors and publisher do not accept any responsibility for loss or damage suffered as a result of the material contained in the Parchment. DISCLAIMER Advertisements are accepted at the discretion of the magazine which reserves the right to alter or refuse to publish any item submitted. Publication

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

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

WHEN YOU HAVE FINISHED WITH THIS MAGAZINE PLEASE RECYCLE IT.

the Parchment 1

Autumn 2021

Contents 6

Access to Justice… But not for victims of minor personal injuries?

Problems Add up for Client Accounts Susan Martin examines issues involving Solicitors’ client accounts

Meet the Extraordinary James Cahill John Geary meets the Law Society President James Cahill

New Section 150 Precedents Keith Walsh provides an overview on what are very useful new precedents for practitioners

Professional Indemnity Renewal The DSBA Practice Management Committee advises on the upcoming Professional Indemnity Insurance Renewal

DSBA Submission on Judicial Planning The DSBA made submissions to the Judicial Planning Working Group

Gender Pay Gap Law Mary Brassil assesses the new legislation and answers some pertinent questions arising

Dublin Solicitors Bar Association 1st Floor, 54 Dawson Street, Dublin 2, Ireland T: 01 670 6089 E: info@dsba.ie W: www.dsba.ie

2 the Parchment

page 16

MEET THE EXTRAORDINARY JAMES CAHILL

Maria Lakes argues that the new Personal Injuries Guidelines were not intended to eliminate minor personal injuries claims

In the future, the State may have to step in and either set up rural legal offices or provide practices with significant legal aid support

Autumn 2021 dsba.ie

Contents

REGULAR FEATURES 01 04 58 60

Editor’s Note President’s Message In Practice News

12 42

High Court Clarifies the Concept of ‘Fixed-term Employee’ Triona Sugrue assesses a recent High Court case

Decision of EU Court re: Online Legality Michael Byrne and Roisin Walsh analyse a recent judgment of the Court of Justice of the European Union

Norwich Pharmacal Orders Adele Hall and Paul Convery review the Irish legal position on Norwich Pharmacal Orders and say that it is an evolving litigation tool

Twelve Years from When?

Defamation Jurisdiction

Insights from LSRA Report

Frank Flanagan and Judith Riordan consider a recent decision of the Court of Appeal in respect of suing for possession or mortgage debt

Karyn Harty opines that a significant shift in the criteria for determining Jurisdiction at EU level may be on the way

Siobhan Lafferty considers the recent bi-annual Legal Services Regulatory Authority Report

52 the Parchment 3

Message from the President

A Year Like No Other

s I approach the end of my term as DSBA President, what is most striking at this remove is the dramatic contrast between our current situation and the position a year ago. Last October, we were still in Level 5 Lockdown with people being asked to stay at home unless providing essential services. We were limited to a radius of 5km from our homes with an embargo on visits to other households and our banqueting delectation was limited to the takeaway offerings of local bars and restaurants. Moreover, there was still great uncertainty in relation to the introduction of effective vaccines. Now, we have almost 90% of our population over 12 fully vaccinated, a steady decreasing number of Covid cases per day and the looming lifting of most of the remaining restrictions later this month. The Covid related news headlines which have dominated the previous 18 months have now been replaced with more mundane yet cosily ordinary news, like changes to our corporation rate of tax, centenaries of controversial historical events and even the notion of a new bank holiday (the last one having been introduced back in 1994). Within our legal community, we have experienced transformative changes like remote and hybrid working arrangements overhauling the office working tradition that has prevailed for decades, video calls replacing in-person meetings and even Court attendances and electronic documents supplanting paper ones. Most of all, we have witnessed an incredible acceleration of the use of technology within our working and personal lives and, generally, we have come to recognise its invaluable importance – which admittedly does not come without its own challenges in terms of investment cost and heightened security risks. The general mood within the Courts and amongst colleagues is that while inperson Court hearings and meetings will be greatly welcomed and herald an end to the pandemic, the technology solutions that we have become familiar with will continue to be relied upon and it is axiomatic that such technology will continually improve and create greater efficiencies for those who embrace it and continue to invest in it.

4 the Parchment

While it will inevitably take time for these enormous changes to settle down, what is undeniable is that we have just come through an unprecedented era which will have a profound impact on the way in which we conduct our businesses and interact with colleagues, clients and the Courts. Throughout all of this and despite the dearth of social events and networking, DSBA has worked hard with the delivery of more than 20 high quality webinars across all practice areas and made a range of comprehensive submissions on various areas of legal reform including the Collective Redress Directive, General Scheme of the Family Law Court Bill, Family Justice Oversight, Mental Health, Regulation of Professional Indemnity Insurance for Solicitors and Barriers for Early Career Solicitors and Barristers and Increasing Diversity. We have also managed to introduce a significant series of cost cutting measures

which, together with our income from webinars, subscriptions, precedents and advertising, have enabled us to emerge from this year with a healthy profit at year end. All of this has only proven possible through the tireless commitment of our volunteer committee and council members along with our very able administrative team led by Maura Smith. They deserve great credit for their commitment and dedication during a very difficult year. As I hand over the President’s baton to my longstanding Council colleague, Diego Gallagher, I am filled with confidence that Diego will steer the Association through a successful and certainly more sociable year. I am also reminded of the quip in one of the many celebrated letters of CS Lewis; “there are far better things ahead than any we leave behind”. Good luck with the path ahead, Diego. Joe O’Malley, DSBA President

Access to Justice… BUT NOT FOR

VICTIMS OF MINOR PERSONAL INJURIES? Maria Lakes argues that the new Personal Injuries Guidelines were not intended to eliminate minor personal injuries claims by denying these victims access to justice

he introduction of the Personal Injuries Guidelines (hereinafter referred to as the “Guidelines”) was intended to recalibrate the level of damages awarded to compensate victims of personal injuries. It was intended to compensate minor injuries with minor damages. It was not intended to eliminate minor personal injuries claims by denying these victims access to justice. The reality is that the introduction of the Guidelines, combined with the failure to revise the District Court Rules Schedule of Costs, will result in victims of minor personal injuries being denied access to justice as they will simply be unable to secure legal representation to take such uneconomic claims.

The Guidelines Quantum under the Guidelines has been discussed at length since its introduction on 24th April 2021 and it is clear many cases that would have been taken within the Circuit Court jurisdiction will now fall to be determined in the District Court. There are a variety of views on the level of quantum within the guidelines and indeed a variety of competing 6 the Parchment

interests on this topic. Regardless of the view adopted, or the interest advocated for, no party in the debate on quantum wished to create a system whereby victims were denied access to justice.

The District Court Schedule of Costs The District Court Rules set out a scale in the Schedule of Costs that will apply in personal injury cases. The current Schedule of Costs was introduced effective from 4th February 2014 (District Court (Civil Procedure) Rules 2014, S.I. No. 17 of 2014) coinciding with the change in monetary jurisdictions of the civil courts when the District Court jurisdiction increased from €6,384 to €15,000 under section 2(1) and part 3 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013. Order 53 r. 2 of the District Court Rules as amended provides: (1) Save as otherwise provided, the costs specified in each scale in the Schedule of Costs are the only lawful costs. (2) The Court may, where appropriate in the special circumstances of a case, to be specified by the

Autumn 2021 dsba.ie Maria Lakes is a partner at Tracey Solicitors specialising in Personal Injury. She is also head of Wills and Probate at Tracey Solicitors

Court, award an amount for costs and/or counsel’s fees in excess of the amount provided in the Schedule of Costs. (3) The costs in the Schedule of Costs are in every instance exclusive of, and in addition to, any sum allowed as recovery of value-added tax and all actual and necessary outlay as is allowed. (4) The Schedule of Costs must be revised no less frequently than once every three years. (5) In any case where the Court is of the opinion that there is no appropriate scale of costs provided, it may measure the costs. (6) In this rule: “actual and necessary outlay” must include a sum for miscellaneous outlays set out under the heading “Schedule of Outlays” in the Schedule of Costs to include postage, photocopying, registered post, fax and sundries and the Schedule of Costs must also be read accordingly. that the “Schedule of Costs are the only lawful costs.” Despite the direction that the Schedule of Costs be revised no less than once every three years, these costs remain unchanged since their introduction in 2014.

By 2019 both the Law Society of Ireland and the Council of the Bar of Ireland had made submissions to the District Court Rules Committee calling for the review of the District Court Rules Schedule of Costs. Despite these submissions, no revision of the Schedule of Costs has taken place. During the past seven years the costs of running a practice have increased, not stayed static or reduced. The review of the District Court Schedule of Costs was legislatively and practically overdue prior to the introduction of the Guidelines. Notwithstanding this overdue review, the Guidelines were introduced without this issue being addressed. While there is provision in Order 53 r. 2(2) for costs in excess of the Schedule of Costs to be awarded in cases of special circumstances there does not seem to be a practice of applications being made in that regard. Order 53 r. 2(3) outlines the information and documentation that is required in a case where costs in excess of the Schedule of Costs are sought

Personal Injuries

It is clear many cases that would have been taken within the Circuit Court jurisdiction will now fall to be determined in the District Court the Parchment 7

It is neither right nor just to live in a society where our legal system now offers no real remedy to individuals who suffer minor personal injuries as a result of the negligence or wrongdoing of a third party

due to the special circumstances of the case, namely; (1) Where a party intends to apply for costs otherwise than in accordance with the Schedule of Costs, that party must have available in Court any information or document which establishes the special circumstances in the case which to support such an application. (2) Where a party applies for an item of cost not provided for in the Schedule of Costs to be allowed, that party must have available in Court any information or document which establishes that the item of cost was necessary or reasonable to be incurred, and documents vouching the cost (if already incurred or paid) or providing an estimate of such cost. (3) Where a party applies for the costs of a civil proceeding, that party must have available in Court information or documents sufficient to confirm the particular pre-hearing steps taken or applications made in the proceeding (including particulars, discovery, applications for judgment on affidavit or judgment in default and any case management hearing) so as to enable the proper amount of costs to be determined. It appears that in the event that such applications were to be made, solicitors in practice would have to prepare the file not just for hearing but also for costs adjudication. It is difficult to understand why this mechanism is not used in practice. Perhaps these applications will arise more frequently in future practice but the uptake in such applications and indeed the success rate of same, remains to be seen.

€3,000. The victim of such injury would have to bring an application to the Injuries Board for which costs cannot be recovered, and should that fail to resolve the matter, the case will proceed to the District Court. If the case is successful after full defence the District Court Schedule of Costs prescribes €750 plus VAT as the solicitor’s professional fee should the damages not exceed €3,000. In the event that damages exceed €3,000 but do not exceed €6,000 (say for example if there are special damages for inclusion) the solicitor’s professional fee would be €1,500 plus VAT. The non-recoverable cost of the Injuries Board application would be required to be discharged on the basis of solicitor own client costs. The result of this model is that such claims are simply unfeasible. An innocent victim of an accident may have to fund and discharge the costs of their application to the Injuries Board and in addition pay for their legal costs rendering any award of compensation meaningless. It is neither right nor just to live in a society where our legal system now offers no real remedy to individuals who suffer minor personal injuries as a result of the negligence or wrongdoing of a third party. These are individuals who have been injured, may have been unable to work, unable to care for their loved ones as they normally would and unable to undertake their everyday activities. Where are our victims’ voices in this discussion? It is clear that victims’ legal representatives cannot advocate for their rights or the profession will be accused of being self-interested. So what is the solution?

Access to Legal Services

Legal Aid

The majority of personal injury claims are taken by solicitors on a ‘no foal, no fee’ basis. In the absence of any meaningful civil legal aid system in the State, it has been recognised that the provision of a no foal, no fee service by solicitors and barristers represents an important pathway to access to justice for individuals (See Joint Committee on Justice and Equality debate, 27/11/2019). In fact this arrangement was accurately described by Mr. Conor Dignam S.C. at the Joint Committee on Justice and Equality on the 27th November 2019 as “in effect, a free legal aid scheme operated by barristers [and solicitors] at their own risk.” There is no access to justice if individuals are prevented from accessing legal services and prevented from accessing the Courts. The combination of the introduction of the Guidelines and the failure to revise the District Court Schedule of Costs results in more and more claims falling within the District Court jurisdiction and therefore yielding uneconomic costs. The only change effected by the Guidelines is the quantum of these cases, the cases themselves have not become less complex and the costs associated with running such cases have not reduced, save for stamp duty. The District Court Schedule of Costs do not represent anywhere near the true costs involved in taking such cases. In practice, this means that it is simply not viable for solicitors to take on cases for victims of minor personal injuries. For example, minor neck injuries, where a substantial recovery is achieved within six months, are valued under the Guidelines at €5008 the Parchment

Access to justice is often achieved through the provision of legal aid. In the case of personal injury claims there is limited legal aid available. It is contended that the provision of legal aid to victims of minor personal injuries is not the solution to facilitate access to justice. First, legal aid would only be available to Plaintiffs who fulfil the means test, meaning that Plaintiffs who do not, are therefore denied access to legal services. Secondly, legal aid is funded ultimately by the taxpayer. There is no basis for the argument that the taxpayer should fund Plaintiffs’ costs for cases resulting from the negligence or wrongdoing of a third party, who may in fact carry insurance for such a claim. Indeed, the taxpayers’ burden has only recently be lightened in the area of personal injury claims by the introduction of section 343R of the Social Welfare Consolidation Act, 2005 as inserted by s. 30 of the Social Welfare and Pensions Act, 2013 whereby the system of recoverable benefits was introduced facilitating the Minister for Employment Affairs and Social Protection with an administrative mechanism to be reimbursed for certain payments that have been made to the victims of tort. Thirdly, the victims of minor personal injuries should be entitled to use a private specialist firm should they wish to do so. Failure to facilitate access to legal services is tantamount to a denial of access to the Courts and access to justice. This is the denial of a constitutional right.

Autumn 2021 dsba.ie

Personal Injuries

Revision of the District Court Schedule of Costs It is incomprehensible that the District Court Schedule of Costs was not revised concurrently with the introduction of the Guidelines. A comprehensive and detailed review of the area of legal costs was undertaken recently in the Review of the Administration of Civil Justice Report. This Report issued prior to the introduction of the Guidelines. The majority of the Review Group did not recommend the introduction of mandatory scale costs, but rather recommended the introduction of non-binding guidelines for the assistance of parties to litigation and their legal representatives. Chief among the concerns of the majority of the Review Group was access to justice. The minority of the Review Group did recommend a mechanism for prescribing the maximum levels of litigation costs chargeable but specifically recognised the entitlement of legal practitioners to be reasonably remunerated for their work. The consideration and implementation of the recommendations of the Review of the Administration of Civil Justice will continue over the next number of years, however, it is fair to say that the current

situation resulting from the continued failure to revise the District Court Schedule of Costs and the introduction of the Guidelines is not in keeping with the majority or minority views of the Review Group in respect of costs. In light of the volume of cases that will now fall within the District Court jurisdiction and the complexities associated with same, it is contended that there is a role for adjudication of costs within the District Court rather than the application of scale costs. This would ensure access to legal services and equitable outcomes in respect of legal costs. The District Court Schedule of Costs require immediate review and revision and pending same practitioners are reminded of the mechanism under Order 53 r. 2(2) for costs in excess of the Schedule of Costs to be awarded in cases of special circumstances. Should the existing state of affairs continue, more and more victims of minor personal injuries will be denied access to legal services and so access to justice. These victims will be denied of their legal right to pursue a legal remedy and we, as a society, will clearly send a message that it is acceptable to ignore the rights of injured individuals. P the Parchment 9

Property/Litigation

Brendan Frawley is a solicitor in the Insolvency and Restructuring team at Fieldfisher

Landlords Beware The High Court recently confirmed the law governing the rights of a residential tenant while an appeal against a determination order is pending. Brendan Frawley examines the recent High Court ruling

Landlords of residential properties should note they are not entitled to retake possession of the dwelling while an appeal is pending in the High Court

10 the Parchment

n the matter of Carroll v Residential Tenancies Board (2021), Mr Justice Simons issued a judgment on 3 September 2021 in an injunction application by a tenant against a landlord who had re-entered the dwelling and changed the locks while an appeal by the tenant to the High Court was pending. The background to this matter is the landlord had served a notice of termination on the tenant on the grounds of alleged anti-social behaviour. The matter came before the Tenancy Tribunal of the Residential Tenancies Board, which heard submissions from both parties and in June 2021 issued a determination order requiring the tenant to vacate the dwelling. The tenant appealed that order to the High Court on a point of law within the statutory period of 21 days. While the appeal was pending, the landlord re-entered the dwelling and changed the locks. During the summer recess, the tenant brought an injunction application before the High Court. The duty judge, Mr Justice Simons, granted an interim injunction ordering the landlord to allow the tenant back into the dwelling and deliver up to him the keys to the new locks pending the appeal being heard. The landlord failed to abide by this order and when the matter came back before the High Court two days later, this time before Mr Justice Hunt, the court extended the interim injunction and directed that the superintendent at the local Garda Station provide such assistance as required to enforce the order of the High Court. At paragraph 27 of his judgment, Mr Justice Simons summarised the law as follows: 27. …the combined effect of sections 86 and 123 [of the Residential Tenancies Act 2004] is that a termination of a Part 4 tenancy may not be lawfully effected in circumstances where a statutory appeal has been made to the High Court within time and remains outstanding. It follows, therefore, that a landlord is not entitled to pre-empt the outcome of a

statutory appeal by demanding that the High Court put him back in possession of the dwelling and allowing him to exclude the tenant. The tenancy cannot be terminated until the appeal has been determined. The landlord had contended that the tenant’s appeal was “doomed to failure from the outset”. However, at paragraphs 28 and 29, Mr Justice Simons held that: 28. The underlying merits of the statutory appeal do not arise for consideration at this stage precisely because the legislation provides what is to happen in the interregnum. The position might have been different had the legislation been silent on this point. 29. In effect, the Oireachtas has put in place a statutory stay pending the determination of an appeal under section 123 of the Residential Tenancies Act 2004. When considering an injunction application, the court would usually apply the Campus Oil test (Campus Oil Ltd. v Minister for Industry and Energy (No.2) [1983] IR88), which poses three questions: 1. is there a fair question to be determined? 2. are damages an adequate remedy? 3. does the balance of convenience favour granting the injunction? Where the injunction application concerns an appeal to the High Court in a residential tenancy matter, the judgment of Mr Justice Simons removes the first of these questions.

Key Points Landlords of residential properties should note they are not entitled to retake possession of the dwelling while an appeal is pending in the High Court, even where the landlord considers there are no valid grounds for the appeal. An appeal of a determination order brought within the statutory period means the order is unenforceable until the appeal has been determined by the High Court. P

Problems add up for Client Accounts Susan Martin examines issues involving solicitors’ client accounts and says that it may be time for the profession to examine alternatives to holding a client account

am a doctoral candidate and as part of my thesis I am researching why solicitors become struck off and moreover, what, if anything we can do about it. From my review of the available data, it appears that while the primary reason for complaints is the breach of undertakings, the most common reason for strike-off is misappropriation of client money. Legislation provides us with an obligation to maintain a client compensation fund and for the Law Society’s Regulation of Practice Committee to monitor and inspect practices. However, bearing in mind the number of honest solicitors against the number of dishonest (far less than 0.01%) the rest of us pay a high price – in reputation and in cold hard cash. This dishonesty is paid for by the contributions of the compliant members of the profession. In addition, as well as the dishonesty of a very small number in the profession, solicitors face more concerns about protecting their client account [from, for example, cyber-attacks], the expense of maintaining their account and their contribution to the compensation fund and compliance with AML (Anti Money Laundering) legislation.

12 the Parchment

The Client Account – When Did We Become Bankers? The client account was introduced by the Solicitors Act 1954 and Solicitors Accounts Regulations commenced on 1st January 1957. From that time, it was necessary for solicitors to hold a client account separate to their office account and to deposit all client monies to that dedicated account. The 1954 Act also introduced the Compensation Fund – a fund set up by the Law Society into which solicitors would pay to “relieve or mitigate the losses sustained in consequence of dishonesty of solicitors.” These provisions gave confidence to the public and institutions in dealing with solicitors and knowing that even if one acted dishonestly, their colleagues would come to aid to ensure that the wrong would be made right. Some 64 years have passed since then and the concerns and worries of the 1950s profession regarding the client account are certainly not the same as those of solicitors practising in the third decade of the 21st century. It was a simpler time when “phishing” meant a few hours on the Corrib during the vacation.

Autumn 2021 dsba.ie Susan Martin is principal of Martin Solicitors. She is Honorary Secretary of the DSBA

Practice Management

The new Central Bank building on North Wall Quay

In the intervening seven decades, money itself also become more complex – there are new forms of money and digital ways of transferring it – in some ways every individual, not to mind every solicitor, has become a banker. Along with this perceived control of money has come more exposure and nowhere is this clearer than in dealing with other people’s money. Compliance with the current Solicitors Accounts Regulations is, for many firm owners, a significant expense. Where, historically, solicitors might have had a minor benefit such as an offset against current account charges, since at least 2008, those arrangements which at least reduced the costs of running a client account have evaporated. In addition to the bank charges (per transaction, costs of statements, returned paid cheques, audit letters) for most solicitors’ firms the running of a client account necessitates at least the engagement of a book-keeper. The client account must be reconciled and balanced monthly, returned paid cheques must be stored and vouchers must be kept for every deposit and withdrawal. It is also necessary for an annual audit to be carried out by the firm’s accountants and

the report drawn up and lodged with the Society. Firms are subject to inspection by the Society’s Regulation of Practice Department. In addition, it is necessary for each solicitor taking a Practising Certificate to pay towards the costs of the Compensation Fund. Many solicitors also carry insurance against a cyber-attack. As well as a lot of worry about receiving, paying out or holding someone else’s money. In addition, as the solicitor is receiving and sending money, they are subject to the Anti-Money Laundering legislation meaning that many checks and safeguards must be carried out to ensure that the money funding the transaction (and the transaction itself) is not the proceeds of crime/terrorist financing/tax evasion. Client onboarding now brings with it a significant amount of unbillable work. Each and every check, regulation and safeguard is of course necessary. The pace of regulation has picked up and even more compliance is required as the world changes. In the last century the solicitor was worried about making an error and overpaying money or was perhaps concerned that a staff member might go rogue. Online banking, while convenient [remember waiting for the Parchment 13

The Banks, despite a wellpublicised campaign by the Law Society and many Bar Associations, have not taken “no” for an answer and the limit which triggers the payment of negative interest rates has, in a matter of months, slid down to a modest sum (€1 million limit)

14 the Parchment

statements to come in!] opens up fresh threats to the safety of client money. In the meantime, the effects of the massive changes in the Irish economy since the 1950s and the enormous asset price inflation over time have meant that the amount being held in solicitors’ accounts and the frequency of money transfers are many multiples of what would have been held in the past. These increases have, of course, led to an increase in exposure. Notwithstanding these checks and balances, there are some solicitors for whom the client account represents a temptation and they steal from it. This is a betrayal of their client, their colleagues and a draw on the compensation fund. Under the stewardship of the Regulation of Practice Department and a robust system of supervision, the compensation fund is protected and claims kept under control. A thought has often occurred, however, that it’s just as well these parties are a tiny percentage of the profession given that the cost to each solicitor as part of their Practising Certificate is the best part of €1,000. As well as a continuation of Covid-19 restrictions, 2021 brought a fresh hell in terms of negative interest rates (There is no such thing as negative interest rates – these are bank charges).

Negative Interest Rates Since we joined the eurozone, interest rates for the most part have been historically low. EURIBOR was below 4% for over 20 years and below 1% since 2009 (See www.ecb.ie). It is now -0.5% for deposits and we may well be at the edge of a deflationary era (See Irish Times 16th July 2021; Gabriel Makhlouf, Governor of the Central Bank of Ireland). Irish Banks now charge for deposits and this cost has been passed onto solicitors in respect of their client account. The Banks, despite a wellpublicised campaign by the Law Society and many Bar Associations, have not taken “no” for an answer and the limit which triggers the payment of negative interest rates has, in a matter of months, slid down to a modest sum (€1 million limit). The sums of money being collected in respect of these charges are staggering with a balance of say, €3 million, attracting charges of more than €25,000 per annum. Contrary to the view of the Central Bank, some commentators believe that inflation is on the rise (See Irish Times 9th September 2021; Irish inflation hits 10-year high as cost of transport and housing jumps) – regardless of where we are in the monetary cycle it appears that banks have the taste to collect revenue in this manner and it may be many years or even never before these charges are lifted. The reader might well wonder if it’s possible to avoid holding a client account at all. It might be possible if, say, the firm only handled criminal work or matrimonial matters [although they would still be obliged to pay into the Compensation Fund, have their accounts audited and submit an annual report]. The nature of much of legal work, however, involves money being placed under our control so that a transaction can take place. This is true in commercial/ contract cases, sale and purchase of property, probate. Even some matrimonial matters can involve the sale of property and transfer of funds on foot of a Court Order.

Running a Client Account Brings Exposure and Expense. What are Possible Alternatives? There are many firms, notwithstanding the above difficulties, who will find it essential to retain their client account despite the expense and exposure. Larger firms will have banking teams, technology teams and through economy of scale, absorb the compliance requirements and expense of client accounts. The most common type of firm in Ireland is run by a Sole Practitioner or Sole Principal. Therefore, as well as running the operations of the firm they must also deal with compliance. The Solicitors Accounts Regulations are the same for every size of firm – all client accounts have the same function. While escrow accounts are not forbidden under the existing Solicitors Accounts Regulations, they are rare and probably impractical for many transactions. It may be worthwhile then to see how other jurisdictions handle their client money.

England & Wales In 2017, the Solicitors Regulatory Authority [‘SRA’] introduced an alternative to holding a client account for solicitors known as a Third-Party Managed Account [‘TPMA’]. This is essentially a Fintech solution for practitioners and acts as an alternative to holding a client account. There is no obligation for a solicitor to hold a TPMA, if they do not wish to, they can continue to hold a client account. How it works is as follows. The practitioner enters into a contract with a TPMA provider [who are themselves regulated by the Financial Conduct Authority] and notifies the SRA that they will not hold a client account. From then on, the practitioner must not hold client money. Instead, what happens is that the practitioner informs their client that they do not hold client money and that they have a contract with a TPMA provider. This is usually disclosed as part of the standard Terms and Conditions sent to their client. The solicitor then enters their client contact information on the TPMA platform. They can at the same time enter any information regarding the other party to the transaction, e.g., the Purchaser’s solicitor’s information. The TPMA provider then contacts the client and captures the information and documentation required for AML compliance. Thereafter any funds to be transferred as part of the client matter will be sent to the TPMA provider. The solicitor will not hold funds but will authorise their release in due course. One facility offered by TPMA providers in the UK is to permit the client to access their own ledger which must be both convenient and transparent. The benefits of holding a TPMA pursuant to the SRA regulations include the following: • No requirement to hold a client account • No obligation to prepare audited accounts • No need to submit an accountant’s annual report • No contribution to be made to the Compensation Fund • No client account practice inspections/audits by SRA • Worry about the cyber-attack on client funds/stealing by solicitors or staff member eliminated • AML responsibilities shared with the TPMA provider. Naturally, there are some disadvantages to holding

Autumn 2021 dsba.ie

Practice Management

a TPMA – it may slow down client on-boarding; there are charges associated with the use of a TPMA [a subscription fee and then a fee per transaction]. Transactions may take a little longer to process given that the funds first have to be lodged to the TPMA account. Separately, clients may be wary of engaging a solicitor without a client account on the basis that their transaction will be slowed down which would give an advantage to those solicitors still holding a client account. In addition, it would no longer be possible for the solicitor to hold money on account towards payment of fees.

France Some years ago, the DSBA held its annual conference in Lyons where we were addressed by the Lyons Bar Association [Barreau de Lyon]. We were interested to learn that the lawyers there do not hold a client account. There are two entirely separate professions which undertake legal work in France – the Notaires who handle Probate and Conveyancing and the Lawyers [‘avocats’] who deal with litigation, commercial transactions, employment and provide advice etc. The avocat is barred by law from handling client money. Instead, the avocats are organised into the jurisdiction of the local court and each lawyer must be a member of their local bar association which performs the functions that the Law Society carry out in this jurisdiction [note – lawyers must subscribe to the national body for avocats as well]. The local bar association organises a “carpa” which is a special bank account to hold client money. The Carpa holds client

money on behalf of avocats who have no access to the money. The money is lodged through the office of the bar association along with a detailed narrative as to the reason why the transaction is necessary as well as the evidence of compliance with AML legislation. Cheques, for example, are made payable to the Carpa and strong evidence must be supplied to prove the requirement for the transaction. Similar to the TPMA, there is no client account held by individual firms of lawyers and there is no audit or inspection or compensation fund. The downside of using a Carpa is that the process is quite bureaucratic [requiring a lot of paperwork] and transactions can take many days to process. There is a fee associated with membership of the Carpa and a per-transaction fee.

Conclusion Given the pressures facing practitioners in this era of cyber-attacks, negative interest rates, extensive regulation and the forthcoming implementation of the 5th Anti-Money laundering Directive, and sky-rocketing insurance, it may be time for the profession to examine alternatives to holding a client account. While it is clear that technology has caused us additional headaches (in the form of the threat of cyber-attacks and fraud) it may also provide solutions. Given that 64 years have passed since the introduction of the client account it may be an opportune time to review to see whether the concept and regulation relating to client money should be reformed, overhauled or an alternative provided. P the Parchment 15

Meet the Extraordinary James Cahill As the end of his Law Society Presidency draws near, James Cahill met with Parchment editor John Geary to discuss a remarkable career, the pinnacle of which has been leading the profession over the past 11 months

ames Cahill is not your average solicitor. He has struggled with dyslexia all his legal career, built his own boat; crossed the Atlantic Ocean in it and enjoyed being a maverick who was never afraid to ask the difficult questions or take a contrary view. He has run his own practice in Castlebar for over 30 years having decided at an early age that he wanted to be self-employed and work in the West of Ireland. His late father John F. Cahill was a Solicitor who qualified in 1935 but young James did not get things served up on a plate. “When I was 21 though, my father told me that he was not leaving me his practice. Some years later when I began to work elsewhere, I realised that he had done absolutely the right thing. My father didn’t trap me in the family business and so that was a wonderful thing. If he did, I wouldn’t have been able to be off building boats or sailing around the world.” James undertook an apprenticeship with his father in Castlebar but that was where it ended. “After my apprenticeship, I remember speaking to the Director of Professional Services in the Law Society whom I had become very friendly with, a man by the name of Fintan Bourke. I told Fintan that I really wanted to build a boat. I didn’t want to get a job in a Dublin office and he said, you know what, there is a vacancy for a young solicitor in a particular office in the West of Ireland. So I got on my motorbike and headed back west and worked with Charles Kelly and Michael Brown.”

16 the Parchment

Love at First Sight James met his wife Katherine Killalea, also a solicitor, one day in the office he was working in. “She joined the practice as an apprentice and the minute I saw her, ‘it clicked’ that was it. On our second date I said to Katherine, ‘you know I have a funny feeling some day you and I are going to get married’. At just 21, why she didn’t hit me, I don’t know. We married in 1985 and we have three grown-up children Conor, Ellen and Fionnuala.”

Dyslexia Every colleague will agree that being a solicitor has its challenges. Imagine having dyslexia on top of the ordinary day-to-day challenges and an inability to read large volumes of paperwork. James Cahill has had to cope with this disability all his life, yet it appears not to have held him back. “I have a dyslexia problem. It doesn’t affect my writing but it affects my reading and I felt that I could deal with that. I didn’t understand of course what dyslexia was. I didn’t even hear the expression back in the early 1960s when I was going to school so I knew nothing about it. I struggled through College (UCD), through pure brute force and determination. When I’m reading, I take it in my own time. The problem is that I cannot read huge volumes of paperwork. I can’t handle that amount. There are not enough hours in the day for me to do it. So, for example I haven’t read novels in years but I read non-fiction as there is much to learn outside of law.”

Autumn 2021 dsba.ie

Interview

the Parchment 17

The Society had to reorganise, reinvent, cut costs and refocus because the financial situation for solicitors has deteriorated significantly due to issues arising out of Covid

It is a tremendous credit to James that he has managed to thrive as a solicitor, rise to the top of the profession and not let something like his dyslexia hold him back. “I have never classified it as a disability. I certainly have classified it myself as being a certain difficulty, but it has not prevented me from being a good Solicitor. After spending 15 months at sea back in 1985, I realised for the first time that my capacity to read had deteriorated because I wasn’t reading continuously.”

A Passion for Sailing During his third level studies in Dublin, the young Mayo man uniquely kept a boat at the Royal Saint George’s Yacht Club. “I used to tow it behind my motor bike. One day, a photographer with the Irish Independent took a photograph of me going out to Dun Laoghaire on the motorway towing my 14ft boat behind the motorbike. It used to cause a bit of a stir at the time.” Whilst studying in Dublin, James decided to sign up for a welding course with Anco, the forerunner to FÁS. This course was the beginning of a labour of love with welding and construction – not your typical hobbies for a busy young solicitor. “That course in welding gave me the basic skills. I went in for the first time in my life and I saw what a proper workshop was, I saw the different trades, I saw these things and I devoured everything I could. Back in those days, lobster pots were all made in timber and I had figured lobster pots actually made of steel and properly treated would be longer lasting.” After young Cahill started practising law in the West, he began building a boat at the weekends and in his spare time. “I am the only person in the British Isles to this day to design, build and sail a boat across an ocean. I did it with help on the design from the late Tad Minish who was living in Westport at the time. He originally came from Kentucky and took me under his wing.”

The moment of truth came in 1985 when James and his wife Katherine together with some other crew left Clew Bay aboard the ‘Ricjak’ – the 42 feet long and 13 tonne boat built by the handyman solicitor. After sailing to Portugal and onwards to Madeira and the Canary Islands, Skipper James successful crossed the Atlantic, landing in Barbados and with a journey up the coast of the USA to Boston. The mammoth voyage, which took 15 months, saw the crew arrive home in November 1986. However, on return to the west coast of Ireland they met several huge storms which almost hampered their safe return. After recovering from his epic sailing trip, James set up his own practice in Castlebar and runs it to this day, some 34 years later.

Business Diversification Over the years, James has cleverly supplemented his income with some side-line consultancy businesses. He set up a legal/auctioneering business in the 1990s called “4 Sale by Owner”. He also used his legal skills in advising Genealogy firms in the USA to find beneficiaries here in Ireland. “I was always reasonably well organised, so I got involved in two other areas of business. I couldn’t compete with a lot of solicitors in the District Court or otherwise where traditionally work came from. So, on one occasion I decided to look into the whole area of genealogy, and I got to a position where I was working with American genealogy firms and that resulted in my finding relatives to claim unclaimed Estates in the United States. In my years of doing that, beneficiaries in Ireland and the UK benefited from inheritances of approximately $30 million that might not otherwise have come into the country. That work then dried up as it’s an area of work which had a limited lifetime in so far as Irish people were concerned because we are fundamentally dealing with the waves of emigration from the country where Irish people emigrated to the USA in the 1900 to the 1920s. The 4 Sale by Owner service idea was that my clients could go to an Auctioneer, of course, but they could also sell the property themselves through the For Sale by Owner service. I did the work at a flat rate during the good years but what it meant was that I was encouraging clients to come into me when they were thinking of selling so that I could actually check out their title in advance. So, the day the property was sold I would have all the work done behind the scenes. I tried to franchise it, but I found too many solicitors felt they had a commitment to auctioneers and they didn’t want to upset that commitment.”

Law Society President It is 21 years since James first put himself forward for election to the Council of the Law Society. He says that hard graft had to be put in to get to the Presidential position. Over those 21 years an average of 23 days a year were spent at Blackhall Place meetings as part of the voluntary commitment to being on Council. “That’s three more working days than the holidays I could take each year. All on a voluntary basis and I enjoyed it thoroughly.” 18 the Parchment

Autumn 2021 dsba.ie

Interview

Election after election he was returned on every occasion, and it culminated in him taking over the Presidential chain of office at Blackhall place in November 2020. The Castlebar-based practitioner confesses that it is a “wonderful honour” to represent the profession. “I have had a tremendous year. There have been so many meetings. I increased the number of official Council meetings from eight to ten. Never in the history of the Society has there been so many meetings, five additional meetings had to be held outside the pre-scheduled Council Meetings this year. We have had a whole series of issues to deal with that are facing the profession. The Society had to reorganise, reinvent, cut costs and refocus because the financial situation for solicitors has deteriorated significantly due to issues arising out of Covid. We have also had a situation where the Director General Ken Murphy retired and there are other senior members of staff within the Society who are approaching retirement age. We have had to put a succession plan in place. So many Council Members are so utterly committed, they are really wonderful people. They may not see eye to eye with

me, but we are not all just there to be cheerleaders. We are there to challenge each other in all sorts of ways. “Over all my years on the Law Society, I haven’t been beholding to anyone. That has enabled me, in so far as I could to speak my own mind on particular matters. I have always found Council Members treated me very well. Of course, they have views about me but nevertheless I do feel that everyone has respected me just for what I am.” The pinnacle of his Presidency was when James arranged for the Council of the Law Society to meet in person in September 2021 in Westport, Co. Mayo. Due to Covid, all meetings on his Presidential watch up to that point were held remotely via Zoom. “It was very successful and one of the most gratifying things about it was the moment we all met, having the cup of tea, having the glass of beer, all sorts of things clicked, all sorts of goodwill which was being frayed at the edges came together and it was such a demonstration of the dire need for personal interaction as against online meetings.” James noted that it has been the custom over the years for the President of the Law Society to commission a piece of artwork or something of that the Parchment 19

We live in an environment where the Legal Aid system is set up so as it only pays to throw the client to the wolves and pretend you are not doing so to plea bargain on minor matters and very often on matters which ought to be defended but which effectively a solicitor cannot defend

nature to the Society. However, he has decided to take a totally different approach on that and to leave a lasting legacy. “There are so many solicitors who have such an incredible level of commitment to the profession who are really good citizens and among the best of people in this country. There are wonderful solicitors out there, entertaining characters, brilliant lawyers, great people and so, I decided that I want to donate something to every solicitor who has been/survived, if I can use that expression, in practice for 40 years and more and I decided to have a plaque made in bronze which depicts the Coat of Arms of the Society and the essential expression “Veritas Vincit” - “Truth conquers all” and present a bronze plaque to every such solicitor. There are 926 solicitors over 40 years qualified and in practice who maintained their Membership of the Law Society. There are at least 1,700 who are still on the Roll but have not necessarily continued their membership after 40 years.”

Concerns He adds: “The practice of law has become extraordinarily difficult and we face many challenges. A big concern I have is the continued presence of legal practices in rural towns and villages. For every 100 solicitors that now qualify, 85 of them are in Dublin-based. That’s just 15 trainee solicitors for the rest of the country to include Cork, Limerick, Galway and all the large towns like Waterford, Kilkenny, Wexford. We are seeing a situation in this country where there is a shortage of GP Doctors in rural areas.

“We have plenty of rural solicitors in this country at the moment but there is a worrying trend. In the future, the State may have to step in and either set up rural legal offices or provide practices with significant legal aid support. I also see the potential for solicitors to restructure themselves, but there are practical problems as to how to do that. The restructuring could be in the form of a franchise operation whereby groups of solicitors could pool resources and in that way maybe give a better service to clients and to cut overheads. “The large firms are not really focused, and understandably from their perspectives, on servicing the local market – ordinary Irish people wanting to do ordinary legal work. These firms can’t service them at the cost the small firms can. On the one hand it’s a wonderful profession to be in, on the other hand very few people realise the level of responsibility we have, the obligations which are pitched on solicitors’ shoulders. It is quite unbelievable and it is only when you begin to speak to people who are in other areas of our economy, in other industries, that you realise how onerous it is to be a solicitor. One leading captain of industry said to me recently how he could not understand the amount of risk that solicitors are required to take on. The obligations placed on solicitors have increased exponentially over the past 30 years. Clients don’t understand what we are dealing with and the risk is we just end up taking on too much responsibility. The next thing they are not happy and they complain. Solicitors are working in an extraordinarily difficult environment but there are really wonderful solicitors out there. They are so committed, they are so enthusiastic, they are such

James Cahill's sailing boat moored at Rosmoney, Westport with Croagh Patrick in the background

20 the Parchment

Autumn 2021 dsba.ie

Interview

Photography: Michael McLaughlin

hard workers that it sort of becomes the norm, it becomes what is somehow expected from them and it is not actually measured against the levels of obligations that other people have on their shoulders. “If I was working for the County Council or for any other body for 40 years I would be given a night out. I would be given a golden handshake. I would have a pension, I’d be given a silver watch or something. You falter as a solicitor and you can find yourself out of business just like that - your family, your staff - everyone who has been relying on you and we have seen the most tragic situations arising. Sadly, many solicitors have taken their own lives because the burden was too great. “The Law Society is continuing to address these concerns and there has been excellent feedback on the mental health and wellbeing projects which have been initiated. “We all contribute to the Benevolent Fund and payments are made to the affected families. Hopefully our newer generation of solicitors will have more awareness of how to deal with mental health issues and the help available to them. Most importantly, the knowledge that there are always colleagues who will help if you reach out to them them. Silence is the enemy. “When I look at the Legal Aid system and the way we are treated as a profession – the fact that at the moment over 1,000 solicitor’s fees have not been paid from Legal Aid on technical points or technical issues. That protects their budgets but takes unfair advantage of those solicitors, particularly the solicitors who occasionally handle Legal Aid cases and the system simply takes advantage of them where they have had to, at their own expense, fight for their clients. “We live in an environment where the Legal Aid system is set up so as it only pays to throw the client to the wolves and pretend you are not doing so to plea bargain on minor matters and very often on matters which ought to be defended but which effectively a solicitor cannot defend. Any cases that are defended are exclusively defended on the basis of the solicitor’s personal commitment and the fact that they would do this work out of principle and bears no relation to the paltry sum of money they manage to receive at the end of it. The money is irrelevant but they cannot continue to fight in this way, sooner or later the State is going to have to honour its responsibilities. “It is extremely difficult for self-employed solicitors, they are going to have to down tools. The problem for them of course the unaffordability of that strategy. We are caught up in so many rules and obligations that there is a tendency for people to feel completely trapped. It is for this reason that I kept up my interest in sailing and maintained a boat over the years. I knew that, whatever might happen to me in this business, I always had the option of sailing into the sunset! “There are too many solicitors who I have come across who are at their wits ends, they tell me that they are just waiting for the day that they can retire and then they find that they can’t get out. When I retire from practice, hopefully in the not

too distant future, I plan to go off sailing again. I hope to explore Uruguay, Argentina and Paraguay and other parts of South America. I would like – in conjunction with the Law Society – to use the planned voyage to benefit the solicitors’ Benevolent Fund and the Peter McVerry Trust.” Given the challenge faced by James Cahill since his youth, it is all the more extraordinary that he continued a resolute and unshakeable journey to the top echelon at Blackhall place – a testimony to this dogged stalwart who has made waves on his life journey. P the Parchment 21

New Section 150 Precedents In July 2021 the Law Society launched its latest Section 150 suite of documents. Keith Walsh provides an overview on what are very useful new precedents for practitioners

he new precedents contain updated guidance to completing the section 150 precedents; a new general non litigation section 150 letter; updated section 150 letters for litigation, PIAB [Personal Injuries Assessment Board], post PIAB and a Bill of costs guidance and

precedents. The new precedents contain non section 150 requirements such as: • Scope of work being conducted by the firm for the client which may include: - What the firm will not be doing for client. - Important dates and implications if these are missed. - What you expect your client to do and by when. - How long the matter is likely to take overall. - Fee sharing or referral commissions and how they will be accounted for. - Current terms and conditions of business. • Limitation of liability • Consent to use of e-signatures and email on the section 150 letter, any other agreement where use of e-signatures permitted by law, bill of costs and any notice or other communication requiring or intending to be signed, for general communication. • Negative interest rates and bank charges • Terms and Conditions of Business • Data Protection Notice • Authority to deduct [note section 149(2) states that “a legal practitioner shall not, without the prior written agreement of his or her client, deduct or appropriate any amount in respect of legal costs from the amount of any damages or moneys that become payable to the client in respect of legal services that the legal practitioner provided to the client.”] This applies

22 the Parchment

to any monies held by the solicitor on the client’s behalf. Sample terms that practitioners may find useful when preparing their firm’s s.150 notices for probate and conveyancing, as well as general and miscellaneous clauses, are also included in the precedents:

Probate 1. The professional fee for the administration of the estate covers the initial return, which must be made to the Revenue Commissioners, the extraction of the Grant of Probate and all non-contentious work in relation to the distribution of the assets and the completion of the administration of the estate, except the transfer of property. 2. All conveyancing fees will be charged on a separate basis. 3. In the event of litigation arising in this estate, this estimate does not include litigation fees. 4. Please note that you, as Personal Representative, will be responsible for our fee. 5. In order to expedite this administration please confirm now that we may sign all and any required paperwork on your behalf in relation to this administration. 6. If an inheritance tax return is made on behalf of a beneficiary, the following charges will be made: €{•} plus VAT per return. This charge will be payable by the individual beneficiary concerned and will not be payable by the estate. A general outlay charge will not apply to this charge. If reliefs and/or exemptions from Inheritance Tax are claimed and if the Revenue Commissioners raise queries and/or conduct an audit, then we will furnish the beneficiary concerned with a revised notice of costs.

Autumn 2021 dsba.ie Keith Walsh is a Dublin solicitor practising primarily in the area of family law and family disputes. He is a qualified mediator and collaborative lawyer

Conveyancing 7. Sample scope for a commercial conveyancing transaction: In this matter we will: • prepare and issue a draft contract for sale / lease and vouched title in respect of the proposed sale • prepare and issue a draft lease and vouched title in respect of the proposed letting • review and report on the draft contract for sale and vouched title in respect of the proposed purchase • review and report on the draft lease and vouched title in respect of the proposed letting • negotiate the terms of a lease of the property known as {•}, and once the form of [contract / lease] [is accepted by the proposed purchaser’s solicitor / you are satisfied with the form of the Contract / Lease], we will also progress the transaction and deal with standard title matters, approving the standard completion documents, with a view to completing the transaction in accordance with the terms of the [contract / lease} (the “Transaction”)]. In particular, please note that any tax or other advices are not included in this estimate. 8. If you have arranged with a third party for the discharge of our fees, this does not remove your obligations to us in the event that the third party fails to discharge our fees and outlays in accordance with this notice.

General and Miscellaneous Clauses 9. We are committed to providing a timely service and in turn you are required to pay on account, interim and final invoices {prior to the closing date of the sale/ purchase of the property} {within thirty (30 days) of the invoice date} {insert relevant payment date}.

Precedents

10. Taxes and charges to consider for a conveyancing matter • Government Agencies (e.g. stamp duty) € • Land Registry fees € • Registry of Deeds fees € • Fees for having documents sworn / declared € • Fee to Local Authority Letter re: roads and services € • Search Fees € • Discharge fee to bank/lending institution € 11. Based on our current knowledge of the Transaction as outlined to us, we estimate that our professional fees will be in the region €{•} ({•} euro) plus VAT calculated on the basis of the time and labour that those working on your matter will expend where the unit of charging is based on our hourly fee rates as follows: Partner €{•} Senior Associate €{•} Associate / Solicitor €{•} Trainee / Paralegal / Legal Executive €{•} 12. Payment on Account of Fees & Disbursements [We may ask you, either at the outset of our work or as it progresses, to make a payment to us on account of our fees and disbursements. Any payment on account will be credited against our invoice(s) for the work concerned.] or [We will require a payment on account from you on the acceptance of the terms, or as the case progresses on account of our fees and disbursements. Any payment on account will be credited against our invoice(s) for the work concerned. We will require payment on account of €{•} ({•} euro).] the Parchment 23

Section 150(4) (e) states that if the matter which is the subject of the notice involves or is likely to involve litigation, then the legal practitioner must provide inter alia an outline of the work to be done in respect of each stage of the litigation process

24 the Parchment

13. Interim Invoices We will invoice you at periodic intervals as we consider appropriate before final completion of the work we have undertaken for you. 14. Payment Terms and Dispute Resolution a. We are committed to providing a timely service and in turn you are required to pay on account, interim and final invoices within thirty (30) days of the invoice date. b. If you have arranged with a third party for the discharge of our fees, this does not remove your obligations to us in the event that the third party fails to discharge our fees in accordance with this notice. c. We reserve the right to charge interest from the end of our credit period, at the rate of eight per cent (8%) per annum on any unpaid invoice. d. If you are unclear about any aspect of the bill of costs, you should speak to the person responsible for the relevant work within twenty-one (21) days of the invoice date, so that any necessary action can be taken before the end of the credit period. e. If you dispute any aspect of the bill of costs, you must set out the nature of the dispute in writing and communicate this to the firm, within twentyone (21) days of the bill of costs being issued to you, and the firm will endeavour to resolve the dispute by informal means including mediation. f. You are at any time entitled to have the dispute referred to mediation and information in relation to these procedures can be obtained from the Legal Services Regulatory Authority. You are also entitled to apply for adjudication of legal costs to the Office of the Legal Costs Adjudicators. Any application for adjudication must be made within six (6) months of receipt of the bill of costs or within three (3) months of the payment of the bill of costs, whichever date occurs first. In the event

that the Legal Costs Adjudicator determines that the aggregate of the amounts to be paid is less than fifteen (15) per cent lower than the aggregate of those amounts set out in the bill of costs you will be liable for the costs of the adjudication. g. We are entitled to make an application for adjudication of costs in the event that the bill of costs or any part thereof remains unpaid on the expiry of a period of thirty (30) days from the date on which the bill of costs was provided. h. The Office of the Legal Costs Adjudicators may be contacted at the following address: Office of the Legal Costs Adjudicators, First Floor, 27-30 Merchants Quay, Dublin 8. Almost two thirds of the new precedents relate to the three precedent litigation section 150 letters for general litigation, PIAB, post PIAB and the outline of stages and other text for litigation matters. Section 150(4)(e) states that if the matter which is the subject of the notice involves or is likely to involve litigation, then the legal practitioner must provide inter alia an outline of the work to be done in respect of each stage of the litigation process and the costs or likely costs or basis of costs involved in respect of each such stage, including the likelihood of engaging a practising barrister, expert witnesses, or providers of other services, The new precedents set out examples of the outline of the work to be done in each of these litigation stages in relation to the following cases: 1. A general plenary matter 2. High Court defamation case 3. High Court debt collection case 4. An alternative post PIAB outline of stages to that contained in the section 150 letter precedent. 5. Circuit Family Court proceedings as well as sample wording on likely costs. P

the two required national newspapers for your legal notices

Same day publication, same contact, one payment Starting from €140 + VAT per newspaper

€270 + VAT for both

Call for an instant quote and hassle-free booking

01 4993414

or email: legal@thestar.ie

now part of the same publishing group

Professional Indemnity Renewal The DSBA Practice Management Committee advises on the upcoming Professional Indemnity Insurance Renewal and request your feedback if you experience any problems

or many the 2020/2021 Professional Indemnity Insurance Renewal season came as something of a shock. Notwithstanding that the amount of claims against 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. As many of you know, the DSBA made submissions to the LSRA [Legal Services Regulatory Authority] and to the Law Society on the problems with the current system and how it is failing many firms across the country. For your information we attach a link to same: https://www.dsba.ie/en/news/431/ For the current year we are afraid that many of us will encounter difficulties with the PII renewal process again given the poor state of the market. If you do have problems can you please let us know so that we, in turn, can use these specific and current issues and bring to bear on the Law Society and the LSRA such pressure as is possible to encourage reform.

Background Since 1994, the obtaining of Professional Indemnity Insurances has been mandatory for all solicitors. In 1994 of course the world was a different place in many respects not least because we had the Solicitors 26 the Parchment

Mutual Defence Fund in the market at that time and, while things ended badly for that Fund, nonetheless for many years it operated successfully and helped to keep premiums at a relatively low, consistent 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 insurers in the market who met the criteria. The unrated insurers left the market subsequently and currently, they cannot return as the Law Society has 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 the time we got to September of 2019 there were only six insurers remaining here.

Autumn 2021 dsba.ie

Insurance

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 was less than 25% of their overall turnover. During 2020 one insurer decided that it would only cover sole practices with a turnover of over €500,000 or partnerships with a minimum of three partners. This year the same insurer has lifted the turnover number to €5 million. For many of us there may therefore be only one insurer in the market. What this all means of course is that when we got to September of 2020, 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 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 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 (though you may be able to get a one year extension if you apply to the governing board). 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

If you have not come out of the Assigned Risks Pool and gone back into the insurance market then you cannot remain in the Assigned Risks Pool and in essence you must cease practising

the Parchment 27

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

Change

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

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 and reform.

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: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 about the idea of preparing the application for insurance but it is something that needs attention early on and certainly by early November your application should be in. 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. As the 2021 form is not yet available, we suggest that you prepare your draft based on the 2020 form pending release of the new one which hopefully

28 the Parchment

will be in much the same format as the 2020 one. 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 as it is anticipated that this may come up on the new proposal form. 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, from whom you are asking a quote, 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

Autumn 2021 dsba.ie

Insurance

advantage and certainly that does appear to make sense. However, what we have seen is that some insurers feel free – notwithstanding your long term loyalty to them – that they can increase your premiums and they also feel free when it suits them to withdraw from the market and leave you high and dry. 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. CNA 4. Liberty

5. QBE 6. Starr Our recommendation is that you ensure the Common Proposal Form 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 submitted proposals by speaking to your broker. 3. 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 six insurers currently are, check for an update on this 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. Unfortunately, you may follow all these steps and still find yourself facing increased premiums through no fault of your own. P

TO ADVERTISE CONTACT: SHARON HUGHES TEL: 086 871 9600 E: SHARON@256CONTENT.COM

the Parchment 29

Mark McCabe is a senior associate in the Healthcare and Medical Law team at Mason Hayes & Curran

Personal Injury

Specificity in Pleadings Mark McCabe outlines why, following two recent Court of Appeal decisions, Personal Injury Litigants should be aware of their obligations of precision and particularity in pleadings

The Court emphasised the duty on solicitors to advise clients about what they are signing and the consequences of signing something that may not be true

n every personal injury case, the parties are obliged to provide full and detailed particulars of the factual bases of their claims pursuant to Section 13, Civil Liability and Courts Act 2004. The Court of Appeal has considered how a number of personal injury cases were pleaded in practice and the intention of the legislature when enacting a number of the provisions of the Civil Liability and Courts Act 2004 (“the 2004 Act”). This is likely to have implications for legal practitioners and their clients. The 2004 Act outlined several changes as to how personal injury pleadings should be drafted. The Court of Appeal considered some of these in the case of Crean v Harty [2020] IECA 364. In this medical negligence case, Mr Crean claimed that he did not provide consent for a third hip replacement operation. He argued that he had not been informed of the significantly increased risk of nerve damage. The clinician denied in their defence that the consent was deficient but did not provide specific reasons for this denial. Mr Crean sought further information about the consent process on foot of this denial. Mr Crean argued that he was entitled to further information about this denial, on the basis that he would be ambushed at trial as he was not aware of the clinician’s views of the consent process. In addition, he

argued that the consent form may not have captured all of his interactions with the clinician. The Court considered whether Mr Crean was allowed this information and ultimately decided in his favour. The reason for the Court’s decision was based on its determination that the wording of the denial itself amounted to a positive assertion that the consent was appropriate. The Court also found that the unambiguous and imperative terms in the wording of section 13 of the 2004 Act meant that the further information should be provided. Importantly, the Court highlighted that whilst the 2004 Act was not a regime of maximum disclosure, it did impose obligations of enhanced disclosure, to fairly enable each party to prepare for trial. This included pleading with greater precision and particularity and avoiding the use of vague, general language. This approach was endorsed in Morgan v ESB [2021] IECA 29 where the Court again highlighted the need for specificity in pleadings, finding that the intended effect of the 2004 Act would be undermined should parties continue to plead in ‘wholly generic terms.’ The Court in Crean also highlighted the very significant innovation of requiring pleadings to be verified on affidavit under the 2004 Act. In a subsequent case of Naghten v Cool Running Events Limited [2021] IECA 17, the Court of Appeal emphasised that this provision applies to both the party bringing the claim and defending the claim alike. Further, the Court emphasised the duty on solicitors to advise clients about what they are signing and the consequences of signing something that may not be true. The Court of Appeal emphasised that ‘the days of making allegations in pleadings without a factual or evidential basis…have long since passed.’

Conclusion The Court of Appeal has endorsed the requirement for parties to plead personal injuries claims with greater precision and particularity, as well as emphasising the significance of verifying pleadings on affidavit. Legal practitioners should take note of these decisions when considering if pleadings are ambiguous or imprecise and if further and more accurate information is warranted. Legal Practitioners are also reminded of their duty to advise clients of the significance of swearing an affidavit of verification and the very serious consequences that may arise if what is verified on affidavit subsequently transpires to be incorrect. P 30 the Parchment

YOUR LEGAL COSTS PARTNER McCann Sadlier, Legal Costs Accountants has over 100 years of combined legal costs experience. We are a result driven team of legal costs practitioners supported by specialised staff. We believe it is vital to be alert in respect of all developments in this ever changing area of the law, enabling us to provide solid and up to date advice. All of our practitioners are members of The Institute of Legal Costs Accountants.

Expedient | Expert | Secure PHONE: 01 840 7069

EMAIL: info@mccannsadlier.ie

WEB: www.mccannsadlier.ie

McCann Sadlier Legal Costs Accountants 11 North Street Business Park Swords, Co Dublin. K67 XH29 DX 91010 Swords McCann Sadlier Legal Costs Accountants 12 Priory Office Park Stillorgan Road, Blackrock Co. Dublin A94 N2V3 DX 7003 Blackrock

court books & virtual documents made easy We’ll bring order to the paperwork, so you can practise better law. Books for Court • Digital Files for Online Cases Confidentiality Assured • Bulk Copying Full Confidentiality Agreement Available Binding • Printed Tabs • Ring Binders Secure Collection & Delivery Service Available 6 Jervis Street, Dublin 1 T: 01 872 5077 E: jervis@snap.ie snap.ie

Joanne Cooney is a senior associate and Mark Woodcock is a partner and Head of the Insolvency and Restructuring team at Fieldfisher

Company Law

Covid to the Rescue, for Once! Joanne Cooney and Mark Woodcock report on an interesting High Court case where an application was refused on account of Covid-19

The events which gave rise to the rental arrears were outside the control of both the parties, entirely contributable to the ongoing restrictions associated with the pandemic and unlikely to be encountered by a future 32 the Parchment

he High Court recently refused an application for an order winding up a company in accordance with Section 569 of the Companies Act 2014 (the “Act”) on the basis that there was a bone fide dispute raised by the company as to the sum due, such that it could be below the statutory threshold of €50,000 (As increased by Companies (Miscellaneous Provisions (Covid-19) Act 2020). However, the more interesting dictum of the judgment in Re: Lestown Property Limited [2021] IEHC 513 was the reluctance of the Court to grant the order in light of the Covid-19 pandemic.

The Facts and Background The parties to the application were landlord and tenant and following a period of non-payment of rent commencing in April 2020, the applicant landlord served a Section 570 demand on the tenant company which remained unsatisfied. A number of issues arose in the case around what rent was actually due given there were specific provisions in the lease for rent suspension where the property could not be occupied and also the landlord’s access to an insurance policy for rent and service charge arrears during such a period. The landlord argued that the rent suspension clause applied only if the premises were in some way physically damaged such that they were unfit for occupation rather than unable to be occupied due

to government restrictions as a result of the Covid-19 pandemic. The company argued that since Covid-19 was a notifiable disease which came within the definition of an ‘insurable risk’ in the Lease, the rent suspension clause was activated and operational. Therefore, the rent arrears did not arise.

Determination of the Court Ms Justice Butler concluded that she “did not have to decide whether the company’s contention that the rent suspension provisions apply is necessarily correct… I must be satisfied that the company has bone fide and substantial grounds for disputing liability for the amount of the debt claimed and that those grounds apply to the entire of the debt or at least to a sufficient proposition of it to bring the undisputed amount below the statutory threshold”. The Court concluded that there were such grounds and refused the application. The Court also noted that the events which gave rise to the rental arrears were outside the control of both the parties, entirely contributable to the ongoing restrictions associated with the pandemic and unlikely to be encountered by a future tenant.

Conclusion These concluding comments of the judgment serve as a warning to petitioners that the extraordinary nature and effect of the Covid-19 pandemic (still to be fully realised) may cause a court to exercise its discretion and refuse an application for a winding up order where a statutory demand remains unsatisfied. P

LAND REGISTRY MAPPING & BER CERTIFICATION SPECIALISTS l l l l l l

COMMERCIAL ENERGY RATINGS LTD t:

www.cerl.ie

LAND REGISTRY MAPPING & BER CERTIFICATION SPECIALISTS l l l l l l

Land Registry Compliant Maps from €225+VAT 650 Land Registration Maps produced yearly 2,000 Commercial & Residential BER Certs issued annually Qualified team of Architects & Engineers registered with SEAI & Engineers Ireland Prompt Efficient Service Full PI Insurance

COMMERCIAL ENERGY RATINGS LTD

Unit 3, Churchtown Business Park, Churchtown, Dublin 14. t: 01-2983000 e: info@cerl.ie www.cerl.ie

Covid compliant. Open for business. Ireland’s premier dispute resolution venue

Nine specialised rooms. Nine reasons to book. Arbitration Hearings Mediation

Conferences Launches Seminars

Consultation Lectures Training

Tech-enabled and supported Safe and secure Facilitating on-site and remote hearings

Tel +353 1 817 5277 info@dublinarbitration.com www.dublinarbitration.ie

DSBA Submission to the Judicial Planning Working Group In July 2021, the DSBA welcomed the opportunity to make submissions to the Judicial Planning Working Group. The Group was established by the Government in April 2021. The Programme for Government contains a commitment to “establish a working group to consider the number of, and type of, judges required to ensure the efficient administration of justice over the next five years”

n her letter of the 30th June 2021, the Secretary to the Judicial Planning Working Group [‘the Working Group’] requested the DSBA to make a submission as a stakeholder organisation in the justice sector in respect of the Government’s commitment to “establish a working group to consider the number of, and type of, Judges required to ensure the efficient administration of justice over the next five years.” This submission took the opportunity to address the Working Group on the issue, the number and types of Judges as well as the ancillary matters required to ensure the efficient administration of justice over the next five years. The Following is the DSBA Submission:

Summary of Recommendations 1. DSBA recommends that the Working Group should consider the appointment of additional Judges to the High Court, Circuit Court and District Court levels, particularly as there will be an increased workload at these levels as we emerge from the Covid-19 pandemic and especially in the lower Courts as a result of the introduction of the Personal Injury Guidelines. The number of Judges to be appointed at each level should be determined by reference to a target wait time to receive a hearing date of no more than 8-12 weeks from date of application. 2. DSBA recommends that the Working Group consider the creation of divisions of the High Court/Specialists Judges and suggests this may be of particular benefit and efficiency in the areas of 34 the Parchment

commercial, information technology, intellectual property, planning and development, personal injury, insolvency and restructuring, employment, probate, matrimonial, mental health and capacity law. We do not advocate that Judges should be confined to such specialist areas but rather that Judges with such specialist skills will be assigned from time to time to these divisions. This would inevitably lead to more efficient and speedier court hearings and determinations. 3. The Working Group might consider the option of allocation of additional judges for criminal trials, particularly at Central Criminal Court where there are 2 year delays for hearing dates. 4. The effect of the Covid-19 restrictions has in many cases created a significant backlog for the Courts at all levels, particularly at District Court and for pretrial matters at Circuit Court level. Certain changes brought about by Covid-19 restrictions have been helpful and their retention should be considered. In the interests of the efficient administration of justice, other changes should be discontinued as soon as possible, that is all court offices including the Central Office, Wards of Court Office and the Probate Office should re-open their public counter as soon as possible. 5. As part of the consideration given to the efficient use of Judges’ time and resources, DSBA recommends that consideration be given by the Working Group to the appointment of Deputy

Autumn 2021 dsba.ie

News

Judges or Masters to handle pre-trial procedural matters and/or additional resources provided to County Registrars, particularly in the Dublin Circuit where the County Registrar’s office handles an enormous volume of work. The delay in disposal of pre-trial matters rather than substantive or plenary hearings is a significant barrier to the efficient administration of justice. 6. Active case management and judicial oversight have proven successful in specific court lists and can play a useful role in achieving the efficient administration of justice. Consideration should be given to the use of these tools in a wider variety of cases, particularly in cases which raise complex issues and involve voluminous case documents and a significant number of witnesses. These tools create opportunities for collaboration between all stakeholders involved in the litigation matters and increase efficiencies in an adversarial system. 7. The Working Group should consider the efficiencies which could be gained by creative listing of pretrial matters. DSBA considers that it is of benefit to the Courts and to Courts users that procedural motions where the jurisprudence is well established are carried out (i) on a remote basis and (ii) listed for a specific time. This innovation which has been brought about by the Covid-19 restrictions is useful and represents an efficient use of time and resources. 8. The Working Group may wish to consider the impact of the change to the type of Courts users brought

about by the failure to provide Civil Legal Aid to those of modest circumstances. Aside from the primary issue of access to justice, untrained court users acting pro se will have the effect of increasing the workload for Court Staff and Judges. This is particularly the case in light of the anticipated changes brought about by the Personal Injury Guidelines where it is expected that many cases will fall to be dealt with within the jurisdiction of the District Court and not involve legal representation. 9. The Working Group should consider the benefit of establishing a premises near the Four Courts, run by the Courts Service for the purpose of facilitating AD [Alternative Dispute Resolution] such as mediation, conciliation and arbitration which would be free of charge for use by litigants. Judges and Courtrooms are free to users and the costs of room hire can otherwise be a barrier to parties. Such a facility would also encourage and promote the use of ADR for Court Users and show that it can be part of the state’s structure for dispute resolution and run alongside courts.

Submissions to the Judicial Planning Working Group The efficiency of the Courts Service and judiciary, and their commitment to justice, bearing in mind its modest annual budget is admirable. That said, the system has scraped along for years with all parties including Courts Users doing their best to paper over the Parchment 35

The number of Judges in Ireland is the lowest out of 47 countries examined by the European Commissioner in 2010

the cracks. There is a significant risk that access to justice is not provided to many users and furthermore, that justice is delayed beyond reasonable levels. In addition to these considerations, there are further pressures and delays heaped on the system by Covid-19 restrictions necessarily imposed due to the pandemic. While it is true that there have been many work-arounds and innovations found, some restrictions have caused real difficulties and delays to our members and ultimately to their clients.

Recommendations The Number of Judges The number of Judges in Ireland is the lowest out of 47 countries examined by the European Commissioner in 2010 (taken from the Association of Judges in Ireland website - Who are the Judiciary). For many years, the number of Judges has fallen short of the maximum permitted by legislation; for example the High Court was short of judges for decades. In addition to this, at any point in time, the number of available Judges has been reduced due to Judges being seconded to other matters such as Tribunals or Inquiries. In a recent interview in the summer edition of the Parchment, the President of the High Court indicated that a further 17 Judges might be required to address existing backlogs and to ensure timely hearings in the future. The lack of Judges might be evidenced from the wait times shown in the Courts Service Annual Report 2019 – See Courts Service Annual Review 2019, page 102. These delays are not only in the High Court – the Court of Appeal is now listing cases for 2024. DSBA believes the optimum wait time to obtain a hearing date should be between eight and 12 weeks, from date of application. DSBA is supportive of additional appointments to the High Court. In addition, additional Judges may also be required in the Circuit Court and District Court, particularly in light of the delays caused by the Covid-19 restrictions and the anticipated increase in volumes of work at those court levels arising from the adoption of the Personal Injury Guidelines. DSBA is of the view that these appointments must be viewed on a medium to long term basis as the impact of Covid-19 restrictions has resulted in some unusual delays within the system. In this regard it is essential that the number of Judges is measured to take into account the workload of each Court after the pandemic backlog has been cleared. Specialist Judges/Creation of Court Divisions DSBA also considers that there are efficiencies to be achieved by funnelling certain specialist cases away from the scope of general jurisdiction (See article by Markus B Zimmer International Journal for Administration, August 2009). Judges and practitioners can then focus their research on their specialist area and this will lead to development of expertise and the law in those fields. In addition, creation of divisions or the appointment of specialist judges may reduce conflicts and forum shopping by litigants in that the jurisprudence of the Court becomes well defined and transparent and geographic differences are reduced.

36 the Parchment

DSBA suggests that there is good reason to consider the appointment of specialist Judges at all Court levels. This may be of particular assistance at the District Court and Circuit Court levels where the forthcoming changes brought about by the Personal Injury Guidelines will no doubt lead to great increase in the volume of work. Other areas of law which might usefully be considered for specialist courts include Commercial, Mental Health and Capacity, Family and Probate. Deputy Judges/ Masters, County Registrars and support to judiciary Subject to constitutional considerations, DSBA recommends that the Working Group actively consider the role that Deputy Judges/ Masters can play in the efficient delivery of court services. In that regard, an examination of the position of Recorder in the England and Wales jurisdiction may be instructive. The position of Recorder was created in 1971 – Section 21, Courts Act 1971. The position is subject to a recommendation to the Queen by the Lord Chancellor after an open competition run by the Judicial Appointments Commission. The Recorder sits as a Judge for 30 days per year. The appointment is for five years after which an extension can be provided. Recorders preside over case management, pre-trial matters and can determine cases at County Court and Crown Court level. The position of Recorder provides the practitioner with judicial experience and can act as a low cost graft of additional temporary judicial resources to deal with backlog and pre-trial matters. Additional Resources for County Registrars The Dublin Circuit is the busiest in the country as would be expected, due to pressure of population and has to deal with a huge volume of work. Of particular concern to the DSBA is the current delays experienced in getting pre-trial matters heard [that is, Motions for Judgment by Default of Appearance/Defence, Motions for Discovery]. Feedback from members indicates that there are wait times of between 11 months and 15 months for new motions. This has the effect of significantly delaying resolution of even routine cases, since they cannot advance where such matters are pending. DSBA urges that the Working Group considers the appointment of additional staff or Deputy County Registrar(s) for Dublin to assist with the very significant backlog that has built up over the last 18 months and the anticipated increased volumes of post-pandemic litigation. Court Listing and Resources DSBA is of the view that creativity and innovation in Court listing can play a useful role into the future in terms of the efficient disposal of cases. For example, during the height of the Covid-19 restrictions, certain trials and motions were heard via video link. The DSBA welcomes this innovation and is of the view that it works particularly well for straightforward procedural matters [e.g. paper based Motions where no viva voce evidence is required]. In respect of court listing, specific time slots allocated to cases are particularly welcome to litigants and practitioners, especially where there are few waiting areas in any of the Dublin Courts. The allocation of

Autumn 2021 dsba.ie

News

a specific time listed must lead to reduced costs for litigants in that the practitioner is only required to be available during that specific time. By way of illustration, prior to the introduction of these time slots, there may have been a call-over at 10.00 a.m., in say, the Circuit Court, but the case/motion might not get on for hearing till 2.00 p.m. In the meantime, given that the case could be called at any minute, the practitioner and the litigant could not leave the vicinity of the Court. Time slot arrangements have also worked well in the appeal Courts. Admittedly, the historic way the list system worked may have had advantages in terms of the use of the Court’s time – that is, there was constantly cases before it and the time specific listing may mean some down time for courts in the course of the day where cases do not proceed. That said, the introduction of a small amount of slack into the system would mean that Courts would have capacity where required for cases to run over or to hear emergency matters. Over-listing of cases does not necessarily lead to further efficiencies and may well put Judges, Registrars and Court staff under much pressure. Other changes, such as the closure of the Central Office public counter have been highly stressful and challenging for DSBA members and should be discontinued as soon as is possible. Covid-19 Restrictions and the Effect on the Courts The DSBA anticipates that the volume and complexity of litigation will increase significantly as society emerges from the Covid-19 pandemic. This will inevitably impact on the ability of the Judiciary to deliver the efficient administration of Justice. Furthermore, the Circuit and District courts will likely also experience an increase in the volume of their workload when the Personal Injury Guidelines are implemented. Legal Aid and Personal Litigants Access to justice is an important issue particularly in light of the complex Court environment which has developed since the turn of the century. By way of illustration in 2001 the Circuit Court Rules comprised 211 pages – they now run to over 2,000 pages. Civil Legal Aid is currently unavailable to those with a disposable income of more than €18,000 per annum. This is in circumstances where the average industrial wage is €44,096 (see CSO Earnings and Labour Costs) per annum. Speaking at an event to mark the 40th anniversary of the Legal Aid Board on 23rd January 2020, the Chief Justice stated “Since litigation is becoming more complex, the rights of individuals may not be fully vindicated due to a lack of civil legal aid.”. The Chief Justice went on to say that he expected that litigation in the near future would become more complex. The complexity of litigation, it follows, places a larger burden on litigants thereby increasing costs. Consequently, this puts private representation beyond the means of many parties meaning that they will act pro se. As the Chief Justice noted at this event, litigation is more efficient when both parties are properly represented. It follows therefore that an increase in litigants in person will lead to an increase in the time required for cases by Courts staff and Judges.

Of particular concern to DSBA is the anticipated increase in Personal Injury cases heard at District Court level due to the introduction of the Personal Injury guidelines. The current level of scale costs at the District Court (unchanged since 2014) mean that for many solicitors Plaintiff personal injury work is not economically sustainable at that level. Accordingly, it may fall to many litigants in person to pursue their own case. This may lead to parties not doing their own case justice in circumstances where the proofs and procedural requirement for personal injury matters are complex. A practical way of dealing with these matters might be for the Civil Legal Aid Scheme to be extended to personal injury plaintiffs and for the means test for Civil Legal Aid to be increased. Facilitating Alternative Dispute Resolution Alternative Dispute Resolution [‘ADR’] including mediation, arbitration and conciliation can prove a quicker and cheaper alternative to litigation. It follows that if more cases were resolved by ADR that this would reduce the burden on the Courts, Judges and Courts staff. While Courts are free at the point of use to Court Users, [i.e., litigants are not charged for the Courtroom or for the time of the Courts staff or Judges] with ADR room hire is a consideration. This can be a barrier to parties taking up ADR solutions. Accordingly, if space were made available through the Courts Service (in the way that mediation is facilitated for family law matters in Dolphin House) then the cost of the room hire would not be a barrier to mediation. Furthermore, the use of ADR as a method of dispute resolution would gain traction, in turn reducing the volume of litigation ultimately coming before the courts. Delays in Criminal Cases Defendants in all Courts experience lengthy delays in taking a date for hearing. At District and Circuit Court levels delays prior to the introduction of Covid-19 restrictions were more than a year. The delays in the Central Criminal Court are particularly lengthy and prior to Covid-19 restrictions, delays of 1.5 to two years were quite common. The additional delays caused by Covid-19 restrictions have added a year to those wait times. Consequently, DSBA believes that additional judicial resources including judges, courts staff and courtrooms are required to deal with these delays in taking a date for hearing. The delays are most unfair on defendants on remand and on the victims of crime.

Conclusion As a stakeholder organisation, DSBA welcomes the opportunity to make a submission to the Working Group. DSBA considers that the number and types of Judges required to ensure the efficient administration of justice over the next five years needs to be carefully considered in the context of the unique post Covid-19 challenges that all Courts users will face. DSBA would welcome the opportunity to engage further with the Working Group to expand upon the themes outlined above and to play its part in developing an efficient system for the coming years. P the Parchment 37

Alison Fanagan S.C. is a consultant in A&L Goodbody’s Litigation and Dispute Resolution Department

Planning Law

Covid Extensions to Planning Permissions Alison Fanagan S.C. outlines new planning changes permitted by legislation signed into law over the summer

he Planning and Development (Amendment) (No. 3) Act 2021 was expedited through the legislative process in June and July 2021 and was signed by the President on 10 July 2021. It provides for extensions to a number of time limits, including for the passing of development plans. Importantly, however, it also allows for extensions, or additional extensions, to existing planning permissions to allow projects to be completed. The section allowing for those extensions has now been commenced, effective from 9 September 2021. Planning permissions have a fixed duration, usually five years. Section 42 of the Planning and Development Act 2000 (as amended) allows for a planning permission to be extended (once) in certain circumstances. An application must be made before the planning permission has expired. Usually, “substantial works” must have already been carried out, the development has to be capable of being completed within a reasonable time, and no environmental impact assessment related issues arise. The effect of Section 7 of this Act is to permit planning authorities, on an application being made, to grant an extension (or further extension) to a

38 the Parchment

planning permission for a period of up to two years or until 31 December 2023, whichever is the earlier, on the same basis as before. The extensions will not be automatic, they must be applied for the same way extensions are usually applied for. If the planning permission expired since 8 January 2021, then the application must be made within six months. During the passage of this legislation through the Seanad, there were calls for the public to be entitled to make submissions on extension applications, for decisions on such applications to be capable of being appealed to An Bord Pleanála, and for applicants to be required to show the specific Covid-19 related reasons why the relevant development was delayed. These were not accepted. In relation to the meaning of “substantial works”, Minister Darragh O’Brien TD noted: “The question as to what is defined as ‘substantial works’ comes up from time to time. Each local authority should have a good handle on that in their area as well. We allow an element of discretion in that regard. This is not the first time ‘substantial works’ have been used as a definition to extend certain provisions that are there. Should this Bill pass into an Act, we will write to all 31 local authorities asking them to use their common sense and discretion in that regard.” P

Gender Pay Gap Law The Gender Pay Gap Information Act 2021 (the “Act”) was signed into law on 13 July 2021. Mary Brassil assesses the new legislation and answers some pertinent questions arising

he Act, once commenced by ministerial order, will amend the Employment Equality Act 1998, requiring the Minister for Children, Equality, Disability, Integration and Youth (the “Minister”) to make regulations requiring private and public sector employers (subject to employment thresholds) to report and publish information relating to their gender pay gap, and, where there is a gap, to explain why there is a gap and what measures are being taken to reduce it. Minister Roderic O’Gorman stated “Reporting of the gender pay gap by employers will provide accountability and transparency, helping to ensure that employers address the gender pay disparity between men and women.”

What is the Gender Pay Gap? The gender pay gap is the difference in the average gross hourly pay of women compared with men in a particular organisation, such that it captures whether women are represented evenly across an organisation. The gender pay gap should not be confused with the concept of equal pay for equal work. The existence of a gender pay gap does not necessarily indicate discrimination by employers or that women are not receiving equal pay for equal work. The right to equal pay arises under the Employment Equality Acts. Equal pay legislation has been in force in Ireland since 1975. Employers are required to pay employees on the same terms when they do “like work” which is defined as work that is the same, similar or work of equal value.

40 the Parchment

widens the scope to employers with 150 + employees on or after the second anniversary of the regulations and to employers with 50 + employees on or after the third anniversary of the regulations. There will be no requirement on employers with less than 50 employees to report.

What Information needs to be Reported? The Act requires in-scope employers to report on the difference in male and female remuneration as follows: • Mean and median hourly remuneration for full-time and part-time employees • Mean and median bonus remuneration • Percentage of all employees who have received a bonus or benefits in kind. The Act also indicates that additional regulations may be enacted to provide further clarity on: • The class of employer, employee and pay to which the regulations apply • How the remuneration of employees is to be calculated • The form, manner and frequency in which information is to be published In addition, in-scope employers will be required to publish, concurrently with the above gender pay gap information, the reasons for such differences and the measures (if any) taken or proposed to be taken by the employer to eliminate or reduce such differences. The Minister has indicated that a central website onto which employers will be required to upload their information will be established.

Will all Employers in Ireland be Affected?

How will the reporting obligations be enforced?

The mandatory reporting obligations will apply to private and public sector employers and will initially only affect employers with 250 + employees. The Act

An employee who claims that their employer has failed to comply with the requirement to publish gender pay gap information may make a complaint to the

Autumn 2021 dsba.ie Mary Brassil is a partner in the Disputes and Employment Departments at McCann Fitzgerald

Workplace Relations Commission (the “WRC”). The WRC will investigate the complaint and may order a specified course of action on the part of the employer to ensure compliance. There is no provision for financial compensation to the employee or for a fine to be imposed. The Act also provides that where the Irish Human Rights and Equality Commission (“IHREC”) is satisfied that it has reasonable grounds for believing that an employer has failed to comply with the requirement to publish gender pay gap information, as provided for in the regulations, it may apply to the Circuit Court or the High Court for an order requiring the employer to comply. An employer that fails to comply with a Circuit Court or High Court order will be in contempt of that Court. IHREC may itself carry out, or invite a particular undertaking, group of undertakings or the undertakings making up a particular industry or sector, to carry out an equality review or prepare and implement an equality action plan. It will be for IHREC to decide whether to exercise these powers following a request by the Minister.

Regulations While the Act paves the way for gender pay gap reporting in Ireland, many of the finer details of the reporting obligations are left to be prescribed by the regulations. The Minister confirmed that it is his intention that the regulations, giving effect to the proposals contained in the Act, will be published and in force by the end of this year, and it is likely therefore that the reporting process will begin in 2022.

What can employers do to prepare for Gender Pay Gap Reporting? There are a number of steps that employers can now

Employment Law

take to prepare for gender pay gap reporting. • Stakeholders – reporting will require the input of a number of stakeholders, ranging from internal departments such as payroll and human resources, to external legal counsel and public relations advisors. Employers should identify, inform, engage with and educate their stakeholders early, to ensure all parties work efficiently and effectively together. • Resources – employers should ensure that they have the required resources within the organisation to carry out gender pay gap reporting, including the technology and software which will be required to collate the data and carry out the calculations. • Collate and Analyse the Data – start collating the data. Carrying out a “dry run” will enable an organisation to (i) identify any technology supports or staff training that may be needed and to (ii) identify and diffuse any potential equal pay or discrimination issues early. • Legal Input – employers should also be mindful of their data protection obligations when calculating and reporting on their gender pay gap. Taking legal advice at an early stage is key, not only in terms of advising in respect of potential legal and data protection issues, but also ensuring that the process followed and output of such an initial review can be protected from disclosure (on the basis of legal privilege). • Communications Strategy – employers should consider their communications strategy, both within their organisation and externally to the general public, in relation to the existence of a gender pay gap within their organisation, and the measures being taken or proposed to be taken to reduce any gender pay gap identified. P

The mandatory reporting obligations will apply to private and public sector employers and will initially only affect employers with 250 + employees

the Parchment 41

High Court Clarifies the Concept of ‘Fixed-term Employee’ Triona Sugrue assesses a recent High Court case which ruled that the Labour Court erred in dismissing an employee’s claim under fixed-term contracts legislation Background The Protection of Employees (Fixed-Term Work) Act 2003 (the Fixed-Term Work Act) provides fixed-term, or temporary, employees with various rights and entitlements. One of these is that where an employee is employed on two or more fixed-term contracts, the aggregate duration cannot exceed four years without objective grounds. Otherwise, the contract will be deemed to be one of indefinite duration (i.e. a permanent contract). In the case of Maurice Power v. HSE, 2021 IEHC 346, Mr Power was appointed Chief Financial Officer of the Saolta University Healthcare Group in 2012. In October 2014, he took up the role of interim Group Chief Executive until 31 March 2015, or until the role was filled on a permanent basis, whichever occurred sooner. This was extended a number of times until, following a public competition for the role in which Mr Power was unsuccessful, he resumed his position as Chief Financial Officer in September 2019. He claimed an entitlement to remain in the post of Group Chief Executive on a permanent basis by virtue of having been employed in that post under successive fixed-term contracts with an aggregate duration of in excess of four years. The issue for determination in the case was 42 the Parchment

whether an existing employee of an organisation who fulfils a more senior role on a temporary basis is a ‘fixed-term employee’ for the purposes of the FixedTerm Work Act.

What did the Labour Court Decide? The Labour Court held that the scope of the FixedTerm Work Act is confined to those employees whose relationship with their employer will end when their fixed-term contract ends, thereby excluding Mr Power.

What did the High Court Decide? The High Court examined the definition of “fixedterm employee” in the Fixed-Term Work Act, which is as follows: “Fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event”. The High Court found that this definition merely requires that the end of the contract of employment concerned is determined by an objective condition. It does not require that this must also have a consequence that the employment relationship is brought to an end. A contract of employment may

Autumn 2021 dsba.ie Triona Sugrue is a knowledge lawyer in the Employment Law Practice Group at A&L Goodbody

qualify as a fixed-term contract notwithstanding that the relevant employee continues in the employment of the organisation thereafter, whether by transitioning to a further contract or reverting to an earlier one. The High Court found that the Labour Court misconstrued the definition of “fixed-term employee” by interpreting a contract of employment as being synonymous with an enduring employment relationship.

What does this Mean for Employers? When implementing successive fixed-term contracts (to include existing employees who are occupying roles on a temporary basis), employers need to ensure they are compliant with the provisions of the Fixed-Term Work Act and in particular those which provide that: • on or before the date of renewal of a fixed-term contract the employer must inform the fixed-term employee, in writing, of the objective grounds justifying the renewal as opposed to offering a permanent contract • where a fixed-term employee is employed on two or more fixed-term contracts and the aggregate duration exceeds four years, an employer must

Employment Law

have objective grounds of justification, otherwise the contract will be deemed to be a permanent contract. While the High Court’s decision confirms that an employee can be a “fixed-term employee”, even though they continue to be a permanent employee of the organisation, it is important to note that the judgment does not mean that an employee would be automatically entitled to remain in the temporary post. Existing employees occupying temporary roles on a fixed term basis are still subject to provisions of the Fixed-Term Work Act. Where a vacant post has been filled by an employee under successive fixed-term contracts with an aggregate duration of in excess of four years, an employer is entitled to assert objective grounds of justification for the use of successive fixed-term contracts. The High Court commented in that regard that any right to return to the original post would be a factor to be considered in deciding whether the successive use of fixed-term contracts is objectively justified. The justification must be based on objective transparent criteria which respond to a genuine need, are appropriate for achieving the objective being pursued and necessary for that purpose. P

Existing employees occupying temporary roles on a fixed term basis are still subject to provisions of the Fixed-Term Work Act

the Parchment 43

Decision of EU Court re: Online Legality Michael Byrne and Roisin Walsh analyse a recent judgment of the Court of Justice of the European Union (CJEU) in the joined cases of YouTube (C-628/18) and Cyando (C-683/19). They say the judgment will be welcomed by internet service providers (ISPs) and social media platforms

he judgment explored the degree of knowledge of illegal activity required on the part of online platforms before they will be unable to avail of the “hosting defence” provided for in the eCommerce Directive (2000/31EC). In reaching its decision, the Court weighed up the importance of freedom of expression and the need to balance liability of online platforms against the fundamental rights of internet users.

Background The cases of YouTube (C-628/18) and Cyando (C683/19) both originated in Germany and were subsequently referred to the CJEU. The Court joined the cases together as both concerned alleged infringements of intellectual property (IP) rights by users of the video sharing platform, YouTube, and the file-hosting and sharing platform operated by Cyando. Both YouTube and Cyando sought to rely on the “hosting defence” under the eCommerce Directive in order to avoid liability for the alleged breaches of law on their respective platforms.

What is the “Hosting Defence”? The “hosting defence” is provided for under Article 14 of the eCommerce Directive. It states that “information society services” (i.e. companies which host information online) are not liable for the 44 the Parchment

information stored on their systems by their users on the condition that they: • do not have actual knowledge of illegal activity or information; and • upon obtaining such knowledge or awareness, act expeditiously to remove or to disable access to the information. To date, the meaning of “actual knowledge of illegal activity or information” has been a matter of some debate and legal argument. In practice, it often arises that companies hosting information online receive complaints relating to content which is alleged by the complainant to be illegal but where it is not immediately apparent to the host whether that content is, in fact, illegal. A good example of this arises where a complaint is received in relation to online content which is alleged to be defamatory (and thereby potentially illegal) but it is not clear to the host whether a valid legal defence might be available to the person who posted the content, such as the defence of truth. This type of uncertainty has often made it difficult for the host to know whether it is obliged to remove the content in order to avoid liability under Article 14.

What is the Level of Knowledge Required? The Opinion of the Advocate General in relation to these cases (which is an independent opinion considered by the CJEU before it delivers judgments)

Autumn 2021 dsba.ie Michael Byrne is a partner and Roisin Walsh is an associate in the Commercial Litigation and Dispute Resolution team at Matheson

had commented on the logic of “notice and take down” under the hosting defence and noted that such mechanisms seek to strike a balance between the rights of different users at stake including, in particular, the freedom of expression of users. The Opinion stated that a notification of illegality was intended to give a service provider sufficient evidence to verify the illegal nature of information and that a provider was obliged to remove such information only where its illegal nature was “apparent” or “manifest”. The Opinion stated that this requirement was “to avoid forcing a provider itself to come to decisions on legally complex questions and, in doing so, turn itself into a judge of online legality”. The Opinion highlighted the risk of “overremoval” by service providers (ie; the risk that, in all ambiguous situations, providers would tend towards systematically removing information on its servers in order to avoid any risk of liability vis à vis the rights holders). The Opinion further observed that service providers will often consider it easier to remove information to avoid possible actions for liability. The Opinion emphasised that such “over-removal” poses an obvious problem in terms of freedom of expression. For those reasons, the Opinion stated that the infringing character of information can only be regarded as “apparent” under the hosting defence where the provider has been given a notification providing it with evidence that would allow a

“diligent economic operator” to “establish that character without difficulty and without conducting a detailed legal or factual examination” (emphasis added). The Opinion noted that this is the only interpretation of the eCommerce Directive that can “avert the risk of intermediary providers becoming judges of online legality and the risk of “over-removal…”. In its judgment, delivered on 22 June 2021, the CJEU referenced these comments of the Opinion with approval and noted that “it should be observed that a notification that protected content has been illegally communicated to the public via a video-sharing platform or a file hosting and sharing platform must contain sufficient information to enable the operator of that platform to satisfy itself, without a detailed legal examination, that that communication is illegal and that removing that content is compatible with freedom of expression” (emphasis added).

Conclusion While the YouTube and Cyando cases relate specifically to the infringement of intellectual property rights, the Court’s comments on the level of knowledge required to remove the “hosting defence” must be considered to be of more general application for internet service providers seeking to rely on this defence under the eCommerce Directive. That being the case, the judgment provides welcome clarity on what has been a sometimes tricky issue for companies hosting content online. P

Litigation

The Opinion stated that a notification of illegality was intended to give a service provider sufficient evidence to verify the illegal nature of information and that a provider was obliged to remove such information only where its illegal nature was “apparent” or “manifest” the Parchment 45

Norwich Pharmacal Orders Adele Hall and Paul Convery review the Irish legal position on Norwich Pharmacal Orders and say that it is an evolving litigation tool

Norwich Pharmacal order (NPO) is generally used to discover the identity of a wrongdoer from a third party. It is an exception to the rule that discovery can only be sought when proceedings are closed. Proceedings are instituted against the third party for the sole purpose of obtaining an order identifying the unknown wrongdoer. An NPO typically directs the third party to disclose information to the applicant about the wrongdoer's identity. In Ireland, a party seeking an NPO must establish a very clear and unambiguous case of wrongdoing (see Megaleasing UK Ltd v Barrett (No. 2) [1993] 1 I.L.R.M. 49) and proof of wrongdoing in respect of each element of the tort complained of (O’Brien v Red Flag Consulting Limited [2015] IEHC 867).

NPOs and Emerging Technologies The NPO arose out of a UK decision in Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133. It has developed in recent times to suit our increasingly digital world. With remarkable foresight in 2002, Lord Woolf commented on the use of NPOs in Ashworth Hospital v MGN Limited [2002] UKHL29: 46 the Parchment

“New situations are inevitably going to arise where it will be appropriate for the jurisdiction to be exercised where it has not been exercised previously. The limits which applied to its use in its infancy should not be allowed to stultify its use now that it has become a valuable and mature remedy.” Earlier this year, the Irish High Court granted an NPO to an American businessperson to assist him trace stolen cryptocurrency, a portion of which had found its way to an account hosted by the Irish based defendant, Coinbase Europe Limited. Another recent application initiated by the Health Service Executive (HSE) against Chronicle Security Ireland (Chronicle), concerned data and confidential material obtained by “parties unknown” in a cyberattack on the HSE. The HSE was granted an NPO which required Chronicle to provide subscriber details of persons who uploaded and downloaded the confidential material taken in the cyber-attack to its malware analysis service “VirusTotal”.

Further Development There is scope for the use of NPOs to evolve further. In Board of Management of Salesian Secondary College (Limerick) v Facebook Ireland Limited [2021]

Autumn 2021 dsba.ie Adele Hall is a senior associate and Paul Convery is a partner in the Litigation and Dispute Resolution team at William Fry

IEHC 287, the applicant school sought an order to compel Facebook to identify those behind an Instagram account. The account allegedly published objectionable content relating to individuals and events at the school. Unusually, the school sought the NPO for the purpose of disciplinary or pastoral action, rather than to initiate legal proceedings against any individual. As this was an uncommon application, not alleging illegality, the High Court proposed referring several questions to the ECJ to clarify points of law in this area: 1. Whether there is an implied right under Charter of Fundamental Rights of the European Union to post material anonymously on the internet. 2. What is the proper threshold for granting a NPO and whether it is necessary to establish a “strong prima facie case” of tortious wrongdoing and an intention to pursue legal proceedings; and 3. Whether a potentially affected person should be provided an opportunity to make submissions anonymously to the court as to whether the order sought should be made The school has since withdrawn its application. Although the substantive questions remain

Litigation

unanswered, the proposed referral demonstrates a possibility that the use of NPOs may evolve beyond current restraints of a clear case of wrongdoing and an intention to pursue legal proceedings.

Costs Third party businesses innocently involved in the alleged wrongdoing will be understandably nervous about the costs associated with complying with or defending NPO applications. Orders regarding costs are fact dependent, but it appears the court will have regard to how parties defend the application. This is illustrated by contrasting the cases of Parcel Connect Ltd v Twitter [2020] IEHC 279 and Blythe v The Commissioner of An Garda Síochána [2019] IEHC 854. In Parcel Connect, the defendant refused to reveal the identity of the user of the offending account without a court order. Nonetheless, it maintained a neutral position by not specifically challenging the NPO application. The court made no order as to costs of the application or the disclosure. However, in Blythe, the defendant mounted a robust defence to proceedings, with the court commenting: “unfortunately, it is not clear to [the court] why

Third party businesses innocently involved in the alleged wrongdoing will be understandably nervous about the costs associated with complying with or defending NPO applications the Parchment 47

The Court held that a person could not bring themselves within the meaning of the Act simply by declaring themselves a whistleblower

the defendant has opposed this application so vigorously or indeed at all” On this basis, the court awarded the costs of proceedings, including the motion, in favour of the plaintiff. The court observed that: “as regards the costs of making the disclosure, the case for costs in making disclosure are stronger where the requested party doesn’t object to the order, because there must be some incentive to parties to come to terms at an early stage”. Essentially, had the defendant agreed to disclosure of the limited information requested, he might have had a case for recouping the costs involved in making the disclosure. However, the court made no order as to costs of disclosure.

members had resigned due to ongoing issues with product quality. There were further allegations that the applicant's staff were incompetent, dishonest, and taking “back handers”. The email was signed John Smith – a presumed pseudonym. The applicant sought an NPO against Google in order to pursue legal action in respect of the alleged defamatory statements. After the application was issued, the Court received a letter from the anonymous sender of the emails - John Smith, who asserted his status as a whistleblower. Mr Smith asked the Court to refuse to make an order that would give up his identity, confirming that there would be no further communication as the account had been deleted.

Recent High Court Decision

The Decision

The recent High Court (Court) decision in Portakabin v Google [2021] IEHC 446 is illustrative of the approach of the Irish courts to NPOs. In Portakabin, the Court granted an application by Portakabin (applicant) for an NPO (application), which required Google to disclose subscriber information associated with a Gmail account that was allegedly spreading defamatory material about the company. The email account was allegedly used to damage the company’s business by making false accusations directly to the applicant's customers.

Interestingly, Google did not appear at the application. Instead it had corresponded with the applicant about the appropriate form of Order, which the Court noted was not unusual in such applications. Google also reserved the right to raise any further issues if the Court’s Order was not consistent with the approved draft Order. The Court expressed its reservation as to whether Google was entitled not to contest the application, and then re-open proceedings if dissatisfied with the Court Order. In the circumstances of this case, nothing turned on this reservation, as the draft and Court Orders were not materially different. However, the Court's comments are interesting and may suggest an appearance in court by a respondent is required. The Court granted the NPO sought, subject to an undertaking that the applicant would only use the information to pursue the individual for defamation and/or redress.

Background in Brief The applicant was a well-known supplier of temporary structures. In March and April 2021, emails were sent directly to the senior management of the applicant's customers. These emails made several accusations including that the applicant was having difficulty getting regulatory approval for its products and that one of their senior staff

48 the Parchment

Autumn 2021 dsba.ie

Litigation

The Court outlined that the jurisdiction to grant NPOs was well established as observed in the Parcel Connect decision (as mentioned above). The Court also considered the Board of Management Salesian Secondary College (Limerick) v Facebook [2021] IEHC 287 case, but distinguished it on the basis of the reasons for the NPO application. In Salesian, the school sought the identity of the person in question for the purpose of disciplinary action only. The Court noted that the applicant may seek to take disciplinary action, should John Smith transpire to be a whistleblowing employee, the main focus of the application was to pursue a remedy for the alleged defamation and wrongful damage to the applicant's business.

Whistleblower Element The Court also considered whether the Protected Disclosures Act 2014 (Act) protected the email account holder where they described themselves as a whistleblower. The Court held that a person could not bring themselves within the meaning of the Act simply by declaring themselves a whistleblower. It was also noted that immunity from civil suit for making a protected disclosure did not include defamatory comments which are expressly excluded from the

Act. The Act did not prevent a person from bringing proceedings to vindicate their good name, which was dependent on identifying the person who made the allegedly defamatory statements.

Key Points There are some significant observations arising from the Portakabin decision: • If a respondent does not attend the NPO application, it may be stopped from reopening the proceedings if unsatisfied with the order made. • Portakabin was distinguished from Salesian Secondary College despite the potential disciplinary aspect. However, the purpose of the NPO in Portakabin was to pursue a remedy against defamatory statements. • There is no automatic protection for persons from identification in such circumstances by simply declaring themselves to be a whistleblower.

Future Developments in the use of NPOs as a litigation tool against a background of fast moving technological advancements will continue. The flexibility of the NPO and the pragmatic approach of the Irish Courts to their use is evident in the aforementioned recent cases. P the Parchment 49

Twelve Years from When? Frank Flanagan and Judith Riordan consider a recent decision of the Court of Appeal in respect of suing for possession or mortgage debt

n the case of The Governor and Company of the Bank of Ireland v Janet Matthews [2018] IECH 335, the defendant Ms Matthews put forward the defence that the Bank’s proceedings were statute barred against her. Ms Matthews, in her capacity as executor of an Estate, contended that the debt owed to Bank of Ireland had accrued prior to the date of the deceased’s death. The Judgment of Ms. Justice Costello, then of the High Court was appealed, and the Court of Appeal delivered two written judgments, which upheld the High Court Decision. The Judgments by Noonan J. and Collins J in [2020] IECA 214, were published on courts.ie in August 2021. Mr Justice Collins embarked on a survey of some key case law relating to the Statute of Limitations and mortgages over the past 10 years. The case provides useful clarity to all involved in judgment or possession proceedings on foot of mortgages.

The Statute of Limitations and Mortgages The key periods provided by the Statute of Limitations 1957 (the Statute) are: • Sale – 12 years from when the right of action accrues. Section 32(2) of the Statute. • Order for possession – 12 years from when the right of action accrues. Section 13(2) of the Statute. • Title – section 33 of the Statute provides: “At the expiration of the period fixed by this Act for a mortgagee to bring an action claiming sale of the mortgaged 50 the Parchment

• • • •

land, the title of the mortgagee to the land shall be extinguished.” Principal – effectively the mortgagee has 12 years to recover the principal debt secured by the mortgage. Interest – arrears of interest cannot be recovered more than six years after they accrued. The Statute also provides for acknowledgements or part payments resetting the above time periods. Actions against deceased borrowers – Section 9 of the Civil Liability Act 1961 also provides a hard two-year limitation period from the date of death in respect of causes of action subsisting against a deceased at the date of death.

When does Time Start to run? In general, time runs from the date on which the lender could sue the borrower for the mortgage debt or possession, as the case may be. Obviously, the lender cannot sue the borrower for the debt until the borrower is in default of an obligation to pay the debt. In general, the ability to seek an order for possession is also dependent on the mortgage monies having become due. In most cases under the terms of the mortgage and in some instances pursuant to statutes, see for instance s62(7) of the Registration of Title Act 1964, which remains in effect in relation to charges granted before 1 December 2009. In most mortgages (see mortgage in GE Capital

Autumn 2021 dsba.ie Frank Flanagan and Judith Riordan are both partners in the Restructuring & Insolvency/Dispute Resolution teams at Mason Hayes & Curran

Woodchester Home Loans Limited v Reade [2012] IEHC 363) even following an event of default, the mortgage monies do not become due until demanded; that is even where the borrower has missed payments. Typically, the lender must issue a demand for payment before the borrower is obliged to repay all of the money owed. There are, however, some mortgages where the mortgage monies become due immediately on the occurrence of an event of default. For instance, the mortgage in Irish Life & Permanent plc v Dunne [2016] 1 IR 92. In Matthews, Collins J. held: “The making of a demand was an essential element of the Bank’s claim here. If the Bank had applied for possession of the Laytown property without first making a demand, I have no doubt that the Appellant would have – correctly – opposed that application on the basis that it could not be maintained in the absence of a demand”. As Matthews concerned the estate of a deceased borrower, significantly, Noonan J. held: “…it was only following upon the making of the demand for payment on the 16th August, 2016 that the facts were in place which, if proved, would have entitled the respondent to judgment. It follows therefore that the cause of action only accrued on that date and is not a cause of action that was pending at the date of Mr. Melsop’s death or one that survived against his estate. The claim herein is therefore not statute barred and the second ground of appeal also fails.”

Separately, Collins J. held that a provision to the effect that: “the secured moneys shall be deemed to have become due within the meaning and for all purposes of the Conveyancing Acts on the execution of this Mortgage” did not alter the mortgagor’s covenant to pay the mortgage monies on demand. Accordingly, he rejected the contention that this rendered the mortgage monies due on default, without demand.

Comment As Matthews is a carefully considered Court of Appeal judgment, which has not been appealed to the Supreme Court, it should provide a good basis for lenders to evaluate their position with respect to the Statute on mortgages and actions against deceased borrowers. Lenders, and purchasers of mortgage loans, should analyse standard form mortgages and determine the position under each type of mortgage, particularly whether demand was required to render the mortgage monies due and therefore to start time running against the lender. Such analysis would provide a framework in which to rapidly assess the position on each individual mortgage based on a limited number of facts and would likely assist in efficient decision making and more accurate valuations. It also brings an end to the uncertainty, which has persisted for a number of years, regarding deceased borrowers where demand had not been made before the date of death. P

Debt/Litigation

In most mortgages even following an event of default, the mortgage monies do not become due until demanded; that is even where the borrower has missed payments the Parchment 51

Defamation Jurisdiction Karyn Harty opines that a significant shift in the criteria for determining Jurisdiction at EU level may be on the way

he European Court of Justice (CJEU) is looking again at the question of jurisdiction in respect of defamatory online content. An opinion on a preliminary ruling from Advocate General Gerard Hogan, formerly a judge of the Irish Court of Appeal, which was requested by the French Cour de Cassation indicates that a significant shift in the criteria for determining whether a claim can be brought in a given Member State may be on the way.

Background The Brussels Recast Regulation 1215/2012 seeks to provide parties with relative certainty as to where they may sue or be sued, as well as reducing the risk of irreconcilable judgments across different Member States. Traditionally under article 5(3) of the Brussels Regulation (44/2001), one could sue for defamation in respect of traditional publications either in the Member State where the defendant was domiciled and recover damages for all the harm caused, or in the Member State where the harmful event occurred and recover damages for the harm caused in that jurisdiction only – Shevill v Presse Alliance SA, C-68/93, [1995] ECR I-415. Article 7(2) of the Brussels Recast Regulation is 52 the Parchment

in identical terms, varying the general rule that a defendant should be sued where it is domiciled to and also allows for proceedings where the harmful event occurred. This principle of going beyond the normal jurisdiction rules to permit claims in Member States where defamatory content may have caused damage is known as the “mosaic approach” to jurisdiction. The question of where the harmful event occurs is not straightforward in respect of digital media, as defamatory content is generally accessible on the internet and it was precisely this scenario that the CJEU had to contend with in eDate Advertising GmbH and Others v X and Société MGN Ltd (Joined cases C-509/09 and C-161/10, EU:C:2011:685) where the CJEU ruled in respect of transnational defamatory content published online without restriction, that the court of the Member State where the plaintiff has its centre of main interests has jurisdiction to determine a claim for damages for all of the harm caused by the defamatory content, or alternatively the plaintiff may sue in any Member State in which the content is or has been accessible but only in respect of the damage caused within that Member State. So following eDate, a person wishing to recover compensation for online defamation can issue proceedings where the defendant is domiciled, in

Autumn 2021 dsba.ie Karyn Harty is a partner at McCann Fitzgerald. She specialises in defamation and media law

the place where the plaintiff has its centre of main interests, or where the online content may have caused damage, subject to being limited to recovering damages for any harm caused in that specific Member State in respect of the last option. In other words, the court retained the mosaic principle on the basis of the ubiquity of any online content. In respect of requests for rectification or removal of online content, as distinct from tort claims for compensation, however, the court has since determined that as removal or rectification is a “single, indivisible application”, any such claims must be brought in the territory where the plaintiff has its centre of main interests (Bolagsupplysningen and Ilsjan v Svensk Handel AB (Case C-194/16). This has led some to question whether the CJEU was effectively reversing its approach and moving away from the eDate mosaic approach to jurisdiction.

Case before the Court In the recent case of GTflix Tv v DR (Case C-251/20) the French Cour de Cassation referred a question to the CJEU as to whether jurisdiction in a case involving a claim for compensation for defamatory content as well as rectification or deletion of content must be determined according to the Member State

Defamation

with jurisdiction to deal with the deletion/rectification aspect of the claim. In his preliminary opinion in GTflix Tv v DR, Advocate General Hogan has indicated that the decision in Bolagsupplysningen and Ilsjan does not necessarily reverse the court’s prior case law, in his view, and that there are good reasons why the mosaic principle should hold in respect of claims concerning defamatory online content. A person might fail to recover damages in one Member State on the basis of not having a sufficient reputation in that state, or the content having only been accessed by a very small number of people in that state, but still succeed in another Member State where more persons might have read the content or due to the plaintiff having a more extensive reputation there. Equally, as defamation law is not harmonised across the EU, there could be differences in law such that a person could fail in one Member State and succeed in another. So the potential for irreconcilable judgments in respect of defamation where the court of any given Member State can only assess damages on the basis of the harm caused within its territory is, in the view of the Advocate General, not a significant issue, whereas it would be as regards an application for deletion or rectification of content. The Advocate General also opines that

As defamation law is not harmonised across the EU, there could be differences in law such that a person could fail in one Member State and succeed in another the Parchment 53

It is notable that the Advocate General has pointed to factors such as the extent of readership of the content and the extent of a plaintiff ’s reputation in a given Member State as being relevant to the question of jurisdiction

the potential for SLAPP [Strategic Lawsuit Against Public Participation] suits – whereby well-resourced parties litigate in several jurisdictions to tie up the defendant in different claims – could be dealt with by having sufficiently rigorous costs provisions, such that plaintiffs would bear the risk of adverse cost rulings if unsuccessful. Defendants, he points out, also have the option of seeking a stay on related claims under Article 30 of the Brussels Recast Regulation. As regards the argument that the mosaic principle leaves defendants uncertain as to where they may be sued, the Advocate General is not so convinced, stating “when a person decides to post content on the internet that is ‘accessible’ from all Member States, that person can expect to be sued in each of those Member States.” Culturally, defamatory material may be regarded differently in different jurisdictions, and damages can vary significantly as between the different legal systems. Taking all of that into account, and rather than jettison the mosaic principle, Advocate General Hogan suggests that combining that principle with a “focalisation” criterion would reduce the scope for legal uncertainty, by having jurisdiction determined according to whether the defamatory content was directed at a particular Member State. Accordingly, applying this criterion the Advocate General considers that the French courts in GTflix Tv v DR will have jurisdiction if it is established that GTflix has an appreciable number of customers in France who are likely to have access to and understand the publication or publications at issue, with the assessment of those facts being a matter for the French court.

Analysis The application of a focalisation criterion raises interesting issues for providers of online content. Much online content is not targeted at any specific jurisdiction, although digital media may target geospecific advertising to a given Member State. Applying the focalisation criterion, an article in Italian on a website that carries advertising directed at the Italian market might reasonably be found to be 54 the Parchment

directed at readers in Italy resulting in the Italian courts having jurisdiction to determine a claim for damages for defamation arising from the article, while a Dutch blogger’s defamatory postings on the comments page of a Dutch newspaper would likely not result in the Swedish courts having jurisdiction, even though the content was fully accessible in Stockholm. Content in English on a topic that is not obviously destined for any specific market seems much more problematic, given the universality of English, meaning that it may be harder to determine jurisdiction in such cases and much less clear from a legal certainty perspective. It is notable that the Advocate General has pointed to factors such as the extent of readership of the content and the extent of a plaintiff ’s reputation in a given Member State as being relevant to the question of jurisdiction. The Irish High Court has recently rejected arguments that jurisdiction based on the eDate decision requires that content must have been accessed, finding that that the material must only be accessible within the territory of the Member State - Robbins v BuzzFeed UK Ltd [2021] IEHC 433 (McCann FitzGerald acted in this case). It would seem logical that if there is a desire to reduce the legal uncertainty arising from the mosaic principle, requiring that the content must have actually been accessed in order for the courts in a given Member State to have jurisdiction under the Brussels Recast Regulation, would seem to be a shorter way home than adding a further, new criterion of focalisation, which may be more difficult to establish on the facts of any given case. The Advocate General’s pithy summing up of his view that there must be an appreciable number of customers in the Member State who are likely to have access to and understand the online content appears to point firmly towards actual accessing of content being a prerequisite for jurisdiction. This would certainly benefit from clarification at CJEU level. Advocate General Hogan’s opinion is not binding on the Court of Justice and it remains to be seen whether it will follow the same approach in its judgment, which will issue at a later date. P

DSBA Annual Conference

• 3 nights B&B in the 5* Tivoli Avenida Liberdade in the heart of Lisbon • Welcome buffet dinner in the Tivoli Avenida on Thursday evening • Business Session with 3 hours CPD • Gala Dinner at Casa Museu Medeiros e Almeida • Coach transfers to and from Lisbon Airport on Thursday & Sunday • Optional guided tour of Jeronimos Monastery and Sintra with lunch at Penha Longa Resort

15-18th September 2022 Lisbon, Portugal

€995 per person sharing

Visit the 2022 Annual Conference link on the DSBA website www.dsba.ie to download the Conference Booking Form.

Book Now Limited Availability

The DSBA has moved…. After several years on Dawson Street, the Office of the DSBA has moved to the Capel Building, Dublin 7. Please note our new address and DX below: Dublin Solicitors Bar Association Unit 206 The Capel Building Mary’s Abbey Dublin 7 01 6706089 DX: 200206 Capel Building www.dsba.ie

For further information, contact Maura Smith on maura@dsba.ie or 01 6706089.

Insights from LSRA Report With publication of the recent bi-annual Legal Services Regulatory Authority Report, Siobhán Lafferty considers points raised in the Report which provides useful guidance for the legal profession on the trends and statistics regarding complaints Introduction The Legal Services Regulatory Authority (the “Authority”) published its second bi-annual report of 2021 (the “Report”) which covers the period from 27 March 2021 to 3 September 2021. It provides trends and statistics over that time timeframe. The Authority’s Report provides a level of insight into the issues which are coming before it and how they are being dealt with.

The Legal Services Regulation Act 2015 (the “Act”) It is worth reminding ourselves of the statutory basis under which the LSRA operates. Part 6 of the Act covers complaints and disciplinary hearings in respect of legal practitioners, which includes both solicitors and barristers. The Act outlines the different categories of complaints, who can make complaints about legal practitioners, as well as the relevant time limits in certain circumstances. In terms of the different types of complaints, the Act provides the following: • Section 50 deals with allegations of misconduct; • Section 51(1)(a) considers legal services of an inadequate standard; and • Section 51(1)(b) is concerned with costs sought by the legal practitioner which were or are excessive. Section 58(7) of the Act, which deals with the admissibility of complaints, provides for a time limit to bring complaints in respect of legal services of an inadequate standard or excessive costs of three years from the later of either: (a) the date on which the legal services concerned were provided or the bill of costs concerned was issued; or (b) the date on which the client first became aware, or ought reasonably to have become aware, that it would be reasonable to consider that there was legal services of an inadequate standard or that costs sought were excessive. 56 the Parchment

On the other hand, there is no time limit in respect of bringing a complaint which relates to misconduct. It is also worth noting that only a client of a legal practitioner can bring a complaint in respect of legal services of an inadequate standard or excessive costs as outlined in section 51 – whereas anyone can bring a complaint about misconduct.

Informal Resolution As with the general trend for any kind of contentious matter, there is a push for matters to be resolved informally or through some form of mediation. There is provision for this within the Act itself and is something which the Chief Executive Officer, Dr Brian J Doherty, has been specifically commenting upon in these annual reports. In the most recent report, he notes that there has been a number of complaints resolved through positive engagement early on in the process and before a decision has been made on admissibility under the Act. However he also comments that “It is of ongoing concern that some legal practitioners are not engaging positively with the LSRA in our attempts to seek a resolution of complaints through informal resolution or mediation.” The overwhelming view from the CEO is that there is a willingness on the part of complainants to mediate – and solicitors should, where possible, take that chance to resolve the matter rather than becoming entrenched in a more serious dispute.

Complaints Received The overwhelming majority of complaints are against solicitors rather than barristers; of 673 complaints, 654 related to solicitors and only 19 related to barristers. It will be curious to see whether, as time goes on, there are more complaints against barristers. It may be that the nature of the almost tripartite relationship between solicitor, barrister and client means there is less chance of a client complaining about a barrister than the solicitor.

Autumn 2021 dsba.ie Siobhán Lafferty is a solicitor at Reddy Charlton and specialises in Employment and Regulatory law

Further in respect of that relationship between solicitors and barristers, one of the emerging themes of this Report is complaints relating to unpaid counsel’s fees. In this regard, the Authority reminds solicitors of their obligations under paragraphs 8.3 and 8.4 of the Law Society’s Guide to Good Professional Conduct. Other trends are issues relating to cyber security – an issue which obviously is becoming of more importance more generally too, as well as complaints from banks in respect of undertakings. Whilst issues of undertakings may only relate to certain types of solicitors, dealing adequately with cyber security issues and counsel’s fees are ones which all solicitors can take on board. There are many other detailed statistics provided in the Report. This includes for instance the types of complaints which were made (65.8% of the complaints related to misconduct, with 28.7% relating to service of an inadequate standard and 5.5% related to excessive costs). Moreover there are breakdowns of what areas of law are bringing in complaints. For complaints of legal services of an inadequate standard, over a third of complaints related to litigation – followed by conveyancing (22.3%), probate (15%) and family (also 15%). Similarly in terms of excessive costs, most complaints related to litigation (43.2%) followed by family (27%), conveyancing (13.5%) and probate (8.1%). The Report also digs into the types of misconduct which are alleged, including: • Conduct bringing the profession into disrepute (31%); • Undertakings (30.2%); • Failure to hand over (11.5%); • Failure to account (7.4%); • Failure to communicate (7%); and • Miscellaneous (12.8%) It is perhaps not surprising that the two most prevalent types of misconduct relate to conduct bringing the profession into disrepute and undertakings.

Position of Junior Solicitors Whilst there are a number of statistics, one which perhaps may be of interest but which is not provided relates to the level of PQE [Post Qualified Experience] of the solicitors who have allegations against them. This may or may not show a trend, but in England and Wales, the issue of young solicitors being before the Solicitors Disciplinary Tribunal has raised some interesting issues. Firstly, what has been of note is that often the wrongdoing of a junior solicitor has not been the issue which is and of itself has resulted in a sanction against them – it is the fact that the junior solicitor then attempts to cover up the wrongdoing instead of being transparent about the issue within their firms. It is understandable why the Solicitors Disciplinary Tribunal would take such a view – honesty is at the heart of the profession. However the fact that certain junior solicitors attempt to cover up has brought other matters to the fore – including the toxic culture within certain firms and the reality that if a junior solicitor raises some kind of mistake,

the response and reaction can be disproportionate, unhelpful and perhaps even damaging. Secondly, the resources of a junior solicitor – compared to perhaps a partner who faces the Solicitors Disciplinary Tribunal and certainly compared to the Solicitors Regulatory Authority of England and Wales itself – simply does not compare. There have been calls to provide junior solicitors with adequate assistance in these hearings to avoid the case where a junior solicitor may have their career ended practically before it has properly started. It will be interesting to see how this issue of equality of arms may develop with the Authority here. Will a more lenient approach be taken with junior lawyers and if not, will they have the kind of resources to deal with complaints against them? This may become all the more relevant in the Irish context due to the fact that equality of arms is protected under the Constitution, within the right to fair procedures. It may well be in the best interests of junior solicitors to get representation early on, as well as try to use the informal routes which the Authority is recommending.

Conclusion The Report provides useful guidance for the legal profession in terms of the trends and statistics in relation to complaints and can serve as a reminder as to what issues can develop into serious issues if not dealt with – for instance, failures to communicate. However, whilst the Report provides a number of useful data points, we do not know what level of PQE solicitors who have complaints against them are. These figures may or may not be indicative of a trend – but it will be fascinating to see whether the approach taken in England and Wales in dealing with junior solicitors is replicated here as the LSRA develops over the years. P

Regulation

There have been calls to provide junior solicitors with adequate assistance in these hearings to avoid the case where a junior solicitor may have their career ended practically before it has properly started

the Parchment 57

DISTRICT AND CIRCUIT COURT OFFICE DUBLIN The District and Circuit Court office is now operating normally as per pre Covid arrangements. Accordingly, it is no longer necessary to make an appointment by email. In addition to the return of normal opening office hours, in relation to any motions which were

adjourned during Covid before the County Registrar, it is possible between 9.45am and 10.15am any morning to have a motion listed ex parte, by stamping and completing an ex parte docket in the office, and the matter will be called that day on or after 12pm before the

County Registrar. This will be either to fix a date if the matter is urgent, or in the event that it is possible to do so, to deal with the matter on consent. Barra O Cochlain, DSBA Litigation Committee

SUPREME COURT PRACTICE DIRECTION SC 21 Documents to be filed for appeal hearings 1. This Guidance is issued in accordance with paragraph 1 (b) of Practice Direction SC 21. The Court has experienced delay in the filing of books of appeal which has had a detrimental effect on the Statement of Case procedure provided for in paragraph 5 of Practice Direction SC 21. The Court is mindful that parties may experience difficulties in filing documents in the current circumstances. However, if such difficulties are anticipated parties are advised that the case management judge or the Office of the Supreme Court should be appraised in good time such that dates fixed for appeal hearings are not jeopardised. 2. Paragraph 24 (a) of Practice Direction SC 19 requires that appeal booklets are filed within 12 weeks of the filing of the notice of intention to proceed. Where a date has been fixed for the appeal hearing, and if not otherwise directed by the case management judge, the appellant is required to file complete books of appeal in the form required by paragraphs 19 to 25 inclusive of

Practice Direction SC 19 in hard copy (8 copies), and electronically, within the said 12 week period or not later than 21 days before the date fixed for hearing, whichever date is the sooner. 3. Parties are reminded of their obligation to constructively engage with each other to agree only materials which genuinely require to be included in the books of appeal and to do so in sufficient time to allow the appellant to file the books by the date required in paragraph 2. 4. In particular, parties are reminded of the detailed requirements for the format and content of booklets of authorities provided for in paragraph 22 (a) of Practice Direction SC 19. It is only necessary to include materials in the booklets of authorities which are relied on in the substance of the written submissions and/or which may be referred to in oral argument. It is not necessary that all authorities which are merely referred to in written submissions should be included.

5. If the parties agree that it is appropriate that more limited core books be utilised at the appeal hearing (if necessary incorporating the core booklets provided for in paragraphs 21 (c) 22 (a) and 23 (b) of Practice Direction SC 19) this matter should be raised in sufficient time with the case management judge and should be identified in the joint document to be filed not later than 48 hours before the first case management hearing as required by paragraph 3 of Practice Direction SC 21. The case management judge may, of his or her own motion, direct that core books be filed in the particular circumstances of the case. If the filing of core books is directed by the case management judge 8 hard copies of those books should be filed by the date provided for in paragraph 2 hereof. In addition, an electronic copy of the complete books of appeal in full format should also be filed by the same date. 6. A failure to file books of appeal by the date required may result in the Court adjourning the appeal.

HIGH COURT CENTRAL OFFICE UPDATE Please find below the list of acceptable applications that an appointment in person can be obtained for: • Summonses that have an imminent statute issue; • Applications that have time restraints; • Motions or filings pursuant to Court order where time is an issue; • Amended Summonses pursuant to Court Orders; • Setting downs; • Bail applications; • Judicial Review applications; • Article 40s; • Special Care applications; • Affidavits, Appearances, Notice of Change/ 58 the Parchment

Appointment in cases which are listed before the Court in next fortnight and documents could not possible be returned in time by post/DX The list is not exhaustive and neither is it intended to be an invitation to include something which appears to be omitted. What is urgent or not, or whether an appointment is necessary or not, depends on a consideration of all of the circumstances pertaining to a particular matter. Both of the Registrars attached to the public office maintain a high visibility during opening hours and are available to give consideration as to whether an appointment can be given in the event that a difficulty should arise.

Autumn 2021 dsba.ie

In Practice

NEGATIVE INTEREST RATE CHARGES AND CONVEYANCING PRACTICE Practitioners will be aware of the introduction by various banks of negative interest rate charges to their client accounts. The Law Society of Ireland had issued a practice note 12/02/2021 which confirmed the Solicitors Acts 1954-2015 and the Solicitors Accounts Regulations 2014 permit clients’ moneys to be held in a non-interest bearing account and permit an interest charge applied in respect of client moneys to be passed on to the client on the basis that certain steps are taken by the solicitor. The Solicitors Accounts (Amendment) Regulations 2021 (SI 463 of 2021) came into operation on 1 October 2021. The 2021 Regulations introduce a new Regulation 8A into the Solicitors Account Regulations 2014 (the Principal Regulations), which specifically address how interest charges on client accounts are to be treated by solicitors as a result of the application of negative rates of interest on clients’ moneys. The new Regulation 8A defines “interest charge” as a charge levied by a bank as a result of the application of negative rates of interest in respect of moneys received by a solicitor or his or her firm for or on account of a client. It provides that a solicitor may agree with a client in respect of the manner in which such interest charge is to be discharged, provided that any such agreement under this Regulation 8A(3) must be in writing. It also provides that any moneys paid by the solicitor in satisfaction of any interest charge in accordance with Regulation 8A(4) is outlay for the purposes of the Regulations provided that it has been made clear to the client that clients’ moneys held by the solicitor for the client are being or will be applied by the

solicitor in satisfaction (in whole or in part) of such interest charge. Therefore, Regulation 8A confirms a solicitor’s entitlement to pass on the interest charges to their clients as an outlay, and it also confirms that agreements in writing may be made with clients in respect of the manner in which such interest charges may be discharged. Regulation 8A also clarifies that it will not be a breach of the Regulations for a solicitor to hold moneys in a non-interest bearing account. The Law Society has previously noted that in deciding how best to pass an interest charge, some solicitors will make a precise daily calculation of the amount of negative interest applied (i.e. like for like outlay) whereas others will apply an additional charge plus VAT based

on a broad stroke approach (e.g. funds handling charge), adding it as a general charge along with postage, phone and photocopying. The Law Society has produced sample clauses to cover these approaches in notices issued pursuant to Section 150 of the Legal Services Regulation Act 2015. Practitioners will need to consider, when issuing the initial s150 Notice, whether any charge of this nature is likely to be incurred and how it will propose to treat such a charge. Any subsequent notice would have to address whether any such charge has been incurred. Marissa O’Keeffe is a Senior Associate Solicitor with St. John Solicitors and a Member of the Property Committee of the DSBA

ONLINE COURT DEVELOPMENTS In the interests of improved efficiencies, the Courts Service introduced a pilot online appointment system with three of the Courts Service offices in late August 2021. Over the course of the pandemic, many Court offices have been operating an appointment-only system for clients wishing to issue non urgent proceedings. This has been a heavily labour-intensive process with appointments only set up following multiple email exchanges and phone calls from Court Service staff to court users. To better manage resources and improve service, the Courts Service is piloting an online appointment system with three offices through courts.ie. This new pilot system allows relevant users to book an appointment to the pilot court offices via our website, www.courts.ie

The Courts Service is piloting an appointment system for clients to: • The Central Office of the High Court • Dublin District Family Law Office (Dolphin House) • Limerick Court Office – Civil and Family Having an appointment helps the user to know when to attend, reduces waiting times for service and also gives the certainty that somebody will be there to help them. At the same time, knowing how many people are coming, helps an office to arrange resources and work more efficiently.

served as usual. There will also be changes to the Courts website to accommodate this new system, and users wishing to make appointments at the pilot offices will be able to do so through www.courts.ie.

What is Changing?

Should colleagues have any questions in relation to this pilot project, please do not hesitate to contact the Courts Service. Email: pablolopezalonso@courts.ie

At the moment, changes will only apply to the offices mentioned above. Clients with urgent matters will continue to be

What’s Next? This pilot will be monitored and reviewed for a few months. The experience of this pilot will inform the Courts Service Modernisation Programme Board in considering the next steps for the pilot and wider organisation.

the Parchment 59

Dublin Circuit Civil Court: Chronic Delays The unprecedented Covid pandemic has impacted all of us and in particular, our Courts have become victims of multiple lockdowns and extended closure spells. A worrying development has occurred at Dublin Circuit Civil Court where massive delays have arisen in obtaining Motion hearing dates before the Dublin County Registrar. In recent weeks, the Dublin Circuit Court office have been assigning dates in November 2022 and December 2022 for simple Motions for Judgment in Default of Appearance and Discovery applications. The Parchment understands that at a recent Dublin County Registrar’s Court, Motions were being assigned and adjourned to dates in February 2023. The negative impact that these delays will have on litigants and their legal representatives will be immense. The Parchment hopes that additional supports can be provided to the Dublin County Registrar to shorten these unacceptable 15-to-18-month delays to Motions. Practitioners will be well aware that whilst waiting for a Motion to be heard, no progress can made in the case and as a result, either the plaintiff or defendant are significantly disadvantaged.

Default at your Peril A WARNING TO SOLICITORS AND CLIENTS Minister for Justice Heather Humphreys signed a significant piece of law on the 24th September 2021 and it will have far reaching consequences for litigations. Statutory Instrument S.I. No. 490 of 2021 has now been adapted as additional Rules of the Superior Courts and will come into operation on the 13th November 2021. These new rules amend the Rules of the Superior Courts by the substituting of Orders 13, 20, 21 and 27. Order 23 Rule 6 and Order 63 Rule 1 are also amended. The changes introduce strict new rules where litigants have defaulted on entering 60 the Parchment

or delivering an Appearance, Statement of Claim, Defence. The new rules provide for the following: • Judgment can be entered in a motion for Judgment in default of defence or default of Statement of Claim except where justice requires an extension of time that where such an extension is granted, the Court shall make an “Unless Order” – thus requiring one Court hearing only. • The party in default will have eight weeks for delivery of their outstanding Statement of Claim or delivery of their Defence in all cases.

• There is now a requirement to provide the defaulter with a 28-day warning letter prior to bringing of a Motion for Judgment in default, including Judgment in default of Appearance. These new rules are applicable to proceedings whether commenced before or after the Commencement Date (13 November 2021) but will not apply to any applications which have been issued prior to that date. This new Statutory Instrument and new Rules for litigants have come about following a decision of the Superior Courts Rules Committee.

Autumn 2021 dsba.ie

News

Law Society Election

Keith Walsh

Tony O’Sullivan

Susan Martin

John Glynn

Valerie Peart

Maeve Delargy

October is election time for the Law Society Council and the Parchment is supporting all Dublin-based candidates by publishing their candidature in the upcoming election. The following are the Dublin-based candidates for election to the Law Society Council 2021/2022: Justine Carty – The Property Registration Authority Maeve Delargy – Philip Lee Solicitors Paul Egan SC – Mason Hayes & Curran LLP Damien Glancy – ESB Networks Legal John Glynn – John Glynn & Co. Paul Keane – Reddy Charlton LLP Liam Kennedy – A&L Goodbody LLP Graham Kenny – Kenny Solicitors Gary Lee – Ballymum Community Law Centre Susan Martin – Martin Solicitors Tony O’Sullivan – Beauchamps LLP Valerie Peart – Pearts Solicitors

Marcin Szulc – Rostra Solicitors Keith Walsh – Keith Walsh Solicitors There are other candidates running for election who are based outside of the capital and therefore, we have not featured them here. Your voting ballots must be returned to the Law Society no later than the 28th October 2021. As this is the Parchment, we cannot let the occasion pass without a plug for former DSBA Presidents Keith Walsh, Tony O’Sullivan and John Glynn. The DSBA’s current secretary and Council member Susan Martin deserves special mention. There is an excellent field of candidates to choose from in this year’s Law Society Elections. Make up your own mind, support the DSBA and the Dublin candidates and ensure that you vote. the Parchment 61

DSBA Annual Cricket Match against the Bar

The Annual John F Buckley cricket match between The DSBA v The Bar of Ireland took place on Friday 3rd September 2021. The match is now in its third year and the teams played for the John F Buckley trophy, named after the late John F Buckley who was a former DSBA President. Well done to all involved and congratulations to the Bar of Ireland on the win!

Left to right: Bar and DSBA teams

Left: Niall Carroll of Leinster Cricket Club and Mark Bergin Far left: Aidan Buckley, Duncan Grehan and Roland Budd

Right: Niall Cawley, Mark Murphy BL and Kevin O’Higgins Far right: Nicolette Lennox and Matthew Kenny

62 the Parchment

Autumn 2021 dsba.ie Photography: Owen O’Connor Photography

Right: Bar of Ireland team Far right: Diego Gallagher and Tony O’Sullivan

Left: Matthew Kenny bowls to Niall Buckley Far left: Simon Mills BL Mark Murphy BL

Right: Diego Gallagher, Vice President of the DSBA presents to Roland Budd BL the winner’s trophy

Left: The Solicitors’ team Far left: Dave McAlinden and Timmy McDowell

the Parchment 63

Robbie Slattery is a partner in the Commercial and Business team at Hayes Solicitors. Gill Cotter is an associate solicitor in the same team at Hayes Solicitors

Personal Injuries

Are all Orders Created Equally? Robbie Slattery and Gill Cotter examine a recent High Court case decision dealing with agreed consent orders submitted by the respective parties, without hearing evidence on the subject matter of the consent orders

Whilst it cannot be conclusively stated that this issue is now resolved once and for all, it is likely that his judgment in Matthews -v- Eircom will be relied upon by litigants who settle personal injury proceedings involving a reduction of the compensator’s liability to pay recoverable benefits to the State

50 the Parchment

he case of Matthews -v- Eircom [2019] 6301P dealt with the issue in the context of 343R of the Social Welfare (Consolidation) Act 2005 (“the Act”) and the State’s Recoverable Benefit and Assistance Scheme which has been in operation since 2014.

The Recoverable Benefit and Assistance Scheme (the “Scheme”) The Scheme makes it compulsory for all compensators to repay the Department of Employment Affairs and Social Protection (the “State”) any amounts of illness related benefits that have been paid to an injured person by the State arising from the injuries sustained in an accident. The Scheme seeks to ensure that illness related benefits are reimbursed to the State. According to the Act, Social Welfare payments are to be repaid to the State by the compensator liable for a personal injury. The compensator is only liable to the extent of that amount as ordered or assessed.

The Scheme in Practice It is common that personal injury proceedings are settled out of court. As part of the terms of settlement it might be agreed by the parties that the amount of recoverable benefits (which the Defendant is responsible for) be reduced, having regard to the circumstances of the individual case. If there is an agreement to reduce the amount of recoverable benefits, the State will not be fully reimbursed. It has been argued that this could unfairly prejudice the financial position of the State and taxpayer.

Matthews -v- Eircom These were personal injuries proceedings which were settled before the full hearing of the case. The parties came before Mr. Justice Cross and asked that the case be struck out with an order for costs in favour of the Plaintiff. Liability was apportioned on a 50:50 basis, and it was agreed by the parties that there would be an appropriate reduction in the amount of recoverable benefits to be paid by the Defendant to the State. The question for the Judge to consider was whether evidence needed to be heard regarding the amount of recoverable benefits due to the State, or if

the Judge could grant the order, as agreed by the parties, without the need to hear evidence on the issue. In delivering his judgment, Mr. Justice Cross clarified the intention of the governing legislation and in doing so held that consent orders which made apportionments of liability for the purposes of the Scheme were valid. Cross J. referred to comments made by Mr Justice Keane in an academic article (Irish Judicial Studies Journal Vol. 4 (2)) and also to two judgments by Mr. Justice Twomey (Condon -v- HSE [2015] 10070P and Szwarc -v- Hanford Commercial Ltd t/a Maldron Hotel Wexford [2018] 9268P). In these judgments Twomey J. had refused to make consent orders which related to loss of earnings and recoverable benefits, even where the terms of the settlement had been agreed between the parties. Twomey J. noted that the term “court order” required an “independent and mutual determination of the evidence”. On this basis the court required a full hearing to make a consent order for the apportionment of recoverable benefits. Twomey J. held that a consent order agreeing reduced liability to pay reduced recoverable benefits could prejudice the financial position of the State and therefore the State’s consent was also required. In addressing the position taken by Twomey J., Cross J. remarked, “It is unfortunate that Twomey J. was not advised of the universal practice of the personal injury courts or of the fact that this court has expressly found that it had jurisdiction to make declarations sufficient to satisfy s. 343R on consent”. Cross J. affirmed the jurisdiction of the courts to make consent orders in settled cases without the need for a hearing of evidence on the issue.

Conclusion The judgment of Cross J. is the first formal written judgment on this well-established practice in the courts. Whilst it cannot be conclusively stated that this issue is now resolved once and for all, it is likely that his judgment in Matthews -v- Eircom will be relied upon by litigants who settle personal injury proceedings involving a reduction of the compensator’s liability to pay recoverable benefits to the State. This judgment is relevant to all personal injuries cases in this jurisdiction, and will have particular relevance for any Defendant in personal injuries litigation as it will have a tangible impact on its potential financial exposure. P

IF YOU FEEL LIKE THIS JUST TRAMPLED ON YOU

Parchment Autumn 2021

Articles inside

News

In Practice