Parchment Autumn 2024

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D UB LIN SOLICITORS B AR ASSOCIATION MAGAZ INE | A UTUMN 2024 | ISSU E 101

THE RUNAWAY JURY? Mr. Justice Bernard Barton speaks out

DIVORCE COACH – A NEW SOLUTION? FOCUS ON NERVOUS SHOCK AND MAREVA INJUNCTIONS

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Autumn 2024 dsba.ie

From the Editor

T

he Government’s proposed abolition of juries in Defamation actions is moving under the political and legal radar and what is equally disquieting is that this legislative proposal is not causing much concern among the wider legal profession.

Retired High Court Judge Bernard Barton has given an exclusive two-part interview to the Parchment, the first of which is on pages 1 -1 of this edition. He expresses his deep unease about the Defamation Amendment Bill 2024.

Quite apart from the knowledge and experience gained over nearly 40 years of practice as a Barrister and Senior Counsel with a special interest in the law of Torts, he was the Judge with responsibility for the management of the Civil uries Division of the High Court from 01 to 2021 and has presided over some of the most legally significant high public profile defamation actions of the last decade. He is better placed than most to opine and decry what he sees as a further erosion of the democratic rights of Irish citizens.

In recent months, Mr. Justice Barton has addressed TDs and Senators in the Houses of the Oireachtas on the very serious consequences for the administration of justice in Ireland which will ensue if the Bill is enacted.

The late Irish Times journalist and writer John Healy published a book in 1968 entitled “No One Shouted Stop the eath of an rish own . His book chronicled the economic and social decline of rural life in the West of Ireland. Like Healy, Mr. Justice Barton is speaking out too, about the gravity of losing this right to trial by jury. nstead of enjoying a uiet retirement and dignified silence, he finds himself being compelled to shout stop.

May the wind continue to be at his back.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2023/2024

MATTHEW KENNY DSBA President

NIALL CAWLEY DSBA Vice President

PAUL RYAN CPD Director Commercial Committee

JOAN DORAN Honorary Treasurer

CIARA O’KENNEDY Honorary Secretary

AVRIL MANGAN Chair of Practice Management Committee

JESSICA HICKEY Chair of Commercial Law Committee

CIARA HALLINAN Chair of Criminal Law

EIMEAR O’DOHERTY Chair of Inhouse Solicitors Committee

PATRICK LONGWORTH Litigation committee

STEFAN O’CONNOR

ÁINE GLEESON Chair of Property Law Committee

CLIONA COSTELLO Chair of Family Law Committee

MARCUS HANAHOE Chair of Litigation Committee

ZOE HUGHES Chair of Probate Committee

PUBLISHED BY The Dublin Solicitors Bar Association, Unit 206, The Capel Building, Mary’s Abbey, Dublin 7

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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.

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time of going to press.

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

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

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

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

WHEN YOU HAVE FINISHED WITH THIS MAGAZINE PLEASE RECYCLE IT.

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Autumn 2024

Contents 6

DSBA Annual Conference in Spain The DSBA held a very successful annual conference in Bilbao, Spain from the 19th to 22nd September 2024

10

Niall Cawley gives his top tips for finding the best policy as renewal season begins again

Nobody is Shouting Stop

18

Enforcement of Settlements in Litigation

22

SCARP – The Practitioner’s Toolkit

Retired Judge of the High Court Bernard Barton talks to Parchment Editor John Geary about his life in law and the grave concerns he has about the proposed abolition of jury trials in defamation actions

Gearoid Carey assesses a recent High Court decision which has highlighted that care needs to be taken when settling a case

Graham Kenny outlines the Small Companies Administrative Rescue Process

24

How did we get here and where do we go now? Áine Hynes SC analyses issues under the new EPA system and what can be done about it

Dublin Solicitors Bar Association Unit 206,The Capel Building, Mary’s Abbey, Dublin 7, Ireland T: 01 670 6089 E: info@dsba.ie W: www.dsba.ie

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page 28

SKY’S THE LIMIT.. THOMAS McNAMARA

Professional Indemnity Renewal

12

The splitting out of solicitor / barrister roles can lead to a duplication of work, increased complexity, and a less coordinated approach than in jurisdictions where firms provide both sets of legal services under the one roof

28

Autumn 2024 dsba.ie

Contents

REGULAR FEATURES 01 Editor’s Note 04 President’s Message 58 In Practice 61 Photocall

34 28

Sky’s the Limit

34

The Rising Costs of Health-Related Claims

36

A Divorce Coach – a new Family Law Solution?

Killian Morris caught up with Thomas McNamara, Director of Legal at Ryanair, and they discussed his career to date and all things Ryanair

Jenny Foley evaluates the recent Report of the Interdepartmental Working Group on the Rising Cost of Health-Related Claims

Mel Murphy advances the argument for why a Divorce Coach is a good idea

40

The indomitable Angela McCann Kevin O’Higgins interviews the remarkable Angela McCann about her unquenchable commitment to legal practice

44

Mareva Injunctions

50

We are Family!

54

Notable Nervous Shock Case

40

Brian Cunneen gives an overview of this interlocutory application

Owen Burke takes a close look at the rights of cohabitants and the implications of the underpinning legislation

Martha Wilson and Katie Nugent review a considered decision in the case of Germaine v Day [2024] IEHC 420, in which the High Court examined the law applicable to nervous shock claims

54 the Parchment 3

Message from the President

DSBA Reins Handover

A

s we enter a new legal year I am getting ready to hand over the Presidency to Niall Cawley who has been my vice-President during the last year. Niall is a solicitor with far more experience than I and his guidance and help, along with that of all of the DSBA Council and all of our committees, has been invaluable to me in the past year.

The DSBA has a healthy corporate governance structure. You cannot be President for more than one year so that our members who may be keen to join a committee and possibly put themselves forward for Council are able to see the path ahead is always a clear one. There are no barriers to volunteering your time or knowledge for the DSBA. If time between work and home does not allow you to join a committee in the coming year then we always welcome new speakers at our webinars and seminars and new content for our Parchment magazine.

It is important that the DSBA remains fresh and relevant and reacts to the changing needs of solicitors. It is noticeable that our members prefer webinars to seminars and we have reacted to that change in habit. Hybrid working has put an added layer of pressure to the working day of our members and we appreciate that we must continue to facilitate the needs of solicitors by o ering our content online and in person where required.

As much as we have to ensure we continue to meet online and use the latest technology to exchange knowledge and ideas we must continue to meet our colleagues in person.

In that regard the DSBA held its annual conference in Bilbao between the 19th and 21st of September. We were hosted by the Biscay Bar Association and particular thanks must go to Rocco Caira and Javier Diago for their hospitality. It was a wonderful few days where colleagues gathered and took advantage of the good weather to enjoy each others company.

It has been an honour to represent the DSBA. As a criminal defence practitioner I think it is important to get involved in the DSBA and see that whilst we are a vibrant legal community there is life beyond the Criminal Courts of Justice. I recommend giving some time to the DSBA to all my colleagues.

Matthew Kenny, DSBA President

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Right: DSBA President Matthew Kenny, Susan Martin and Niall Cawley

DSBA Annual Conference – Bilbao, Spain The DSBA held a very successful annual conference in Bilbao, Spain from the 19th to 22nd September 2024 with over 100 solicitors attending

P

resident of the DSBA Matthew Kenny welcomed all attendees, and the opening address was from the Biscay Bar Association President Ms Maite Morillo Quintanilla.

Carlos Santaló Goris, Lecturer at the European Institute of Public Administration in Luxembourg, spoke about taking evidence in civil litigation across the EU and gave a practical overview of Regulation 0 01 .

The President’s Forum involved Matthew Kenny, DSBA President, Niall Cawley, DSBA Vice President, and Ms Susan Martin, DSBA Past President, in a questions and answers interaction with all in attendance. P

6 the Parchment

Autumn 2024 dsba.ie Photography: Enrique Moreno Esquibel

DSBA Annual Conference

Right: Paul Egan, Joan Doran, Patrick Derivan, Katharine Kelleher and Michael Moran

Left: Liz Dowling, Deirdre Walsh and Nora McCarthy Far left: John Griffin and Patrick Groarke

Right: Niamh Quirke, Aine Gleeson and Stefan O’Connor Far right: Anne Leech, Stephen Fitzpatrick and Caroline Bergin

Left: Niall Cawley, Avril Mangan and Ciara O’Kennedy Far left: Aine Hynes and Katharine Kelleher

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Practice Management

Niall Cawley is principal of Niall T. Cawley Solicitors, Blackrock. He is incoming President of the DSBA

Professional Indemnity Renewal As we approach the annual renewal process again, Niall Cawley sets out some advice in relation to professional indemnity insurance, outlines the current insurance providers and gives insight into how the market is behaving for the current year Renewal Process Advice

Prepare your application early.

I know that this has often been said but it really is a good idea to try and prepare your application early so that you do not find yourself under pressure. iven the cost of professional indemnity insurance early prep is clearly advisable and ideally you would have your application in by early to mid October.

Use the common proposal form.

There are good reasons why you should use the common proposal form which is now available, and they are: a. Using a short form alerts the insurer to the fact that you are only going to them. b. Even if you do use a short form for several years eventually you will be asked to use the common proposal form and this will involve you having to go back collating data over many years whereas if you use the common proposal form annually you will only have to update it for one year. c. The common proposal form was intended to facilitate shopping around. We cannot over emphasise the importance of doing that. Colleagues have often advised us that shopping around has resulted in substantial savings. d. Finally, you need to be aware of what you are giving warranties in relation to. The insurance industry has negotiated an agreement with the Law Society and the common proposal form deals with all the points.

For example, are you limiting your liability you should be anyway . ou need to be clear legally as to what you are agreeing to do so that you do not have a difficulty should a claim arise.

Who is in the Market?

For partnerships the current insurers in the market are AIG, Aviva, Berkshire and Liberty. For sole practitioners and partnerships, the current insurers in the market are Allianz, CNA and Starr European.

There are no new entrants expected into the market.

What to Expect in Renewal Happily, the global professional indemnity insurance market has continued to operate as a buyer’s market with downward pressure on rates.

Therefore, you can expect the following: a. f you firm is at on fees no increase in fees and the firm is claims-free, then there ought to be a reduction in premium. b. f the firm is declaring growth of say up to 10 then it is expected that the renewal quote will be at worst at and possibly with a small reduction. c. As you might imagine if you are showing a larger growth of 10 to 0 or more and also depending on where that growth is, e.g. conveyancing, then there could be an increase of premium albeit that this is in the context of an overall downward pressure in rates. d. Finally, of course for firms with live or legacy claims all of that will be subject to underwriting review.

Top Up Cover & Cyber Top up prices are under downward pressure as well, happily.

Cyber insurance is regarded as being a good idea in the current climate where we all have targets on our backs, and we are all under regular attack of one form or another.

You do, however, have basic cyber cover in your professional indemnity insurance policy so you need to speak to your broker to see what you are getting over and above your basic PII. Finally, be very wary of cheap cyber cover. Insist on a written assurance that the Cyber Policy will pay out first for Cyber claims and not after your main P Policy pays out.

This has arisen in the past and you want to be very careful.

Conclusion Happily, the market is now a little brighter than it has been historically. Last year was the first year certainly where this writer encountered a drop in premiums.

Good luck out there. P 10 the Parchment

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Nobody is Shouting Stop As an immensely respected Judge of the High Court, now retired, Bernard Barton talks to Parchment Editor John Geary about his life in law and the grave concerns he has about the proposed abolition of jury trials in defamation actions, as set out in the Defamation Amendment ill 0 4

M

r. Justice Barton is on a crucial mission and time is short. The Government is proposing to pass legislation before the 33rd Dail is dissolved to stop High Court defamation actions being decided by a jury. That dissolution could come any day now and the threat to guillotine this Bill and hurriedly pass it into legislation without any proper time for reasoned debate in the Oireachtas is alarming, he says.

From 01 to 0 1, he was the udge with responsibility for the Civil Jury Division of the High Court. During his tenure in this role he presided over many important defamation cases including the trials of Denis O’Brien against the Sunday Business Post, Gerard Kean against the Irish Daily Star, Keogh against RTE, Ryanair against Van Zwol and others, Paudie Co ey against the Kilkenny People, Higgins against the Irish Aviation Authority and Gordon against The Irish Racehorse Trainers Association.

The Department of Justice Report on the Review of the 00 Defamation Act was completed in 0 . This Report identified a number of matters to be dealt with including how best the law on Defamation could be amended to avoid the risk of disproportionate and unpredictable awards and legal costs having a chilling e ect on the right to freedom of expression, particularly on investigative journalism or public debate on issues of public interest.

12 the Parchment

The approach to the issues identified and the conclusions on which the Review Report recommendation is made are misconceived, incomplete and distorted by factual inaccuracy

“Having reached a conclusion based on the results of appeals against awards in a tiny minority of cases, four of which predated the coming into force of the 00 Act, and were thus tried under the 1 1 Defamation Act, cases which were irrelevant to a review of the 00 Act, and relying on the Court of Appeal decision in Higgins and the Irish Aviation Authority, the Report recommended the abolition of the right to trial by jury as the best means of achieving the stated objective.

The premise on which the recommendation is based is as factually incorrect as it is legally awed. Moreover, it has been overtaken by recent developments in the law of a fundamental nature,” says the Judge.

“The approach to the issues identified and the conclusions reached on which the Review Report recommendation is made are misconceived, incomplete and distorted by legal factual inaccuracy. Because the Report of the Review was published before the significant developments in the law which have taken place subsequently, particularly the fundamental change in the law regarding the assessment of damages in defamation actions, the factual and legal framework on which abolition rests has been rendered obsolete. The most significant development is the 0 decision of the Supreme Court in Higgins v The Irish Aviation Authority.

“Apart altogether from its unanimous decision to reverse the decision of the Court of Appeal on which the recommendation

Autumn 2024 dsba.ie John Geary is principal at J.V. Geary Solicitors, and he is Editor of the Parchment

Cross Examination

the Parchment 13

The idea that in respect of serious cases involving the rights to a good name and freedom of speech jury trial is to be removed is alarming to abolish jury trial is founded, the seminal importance of the decision in the Higgins case is that it identifies and comprehensively addresses the risk of disproportionate awards occurring in future defamation cases by setting out categories of damages and parameters/guidelines which must hence forth be given to juries to assist them in reaching a proportionate and reasonable award fair to both parties.”

Outlining the importance of this mode of trial in the rish legal system, Mr. ustice Barton describes jury trial as a quintessential expression of our democracy in the administration of justice and he strongly opines that the legislative proposal to remove juries from defamation actions in the High Court strikes at a core principle integral to the bedrock of the Irish Legal System.

“All of the fundamental rights particular to the individual guaranteed by the Constitution are subject to vindication by jury trial: the idea that in respect of serious cases involving the rights to a good name and freedom of speech jury trial is to be removed is alarming.

“The involvement of the public in the administration of justice is a basic democratic principle. If enacted the proposal will not only strike down the right of the citizen to choose how the facts of a case are 14 the Parchment

to be decided, by judge and jury or judge alone ironically in an era where respect for the right to choose has become so important but it also removes the public from involvement in the administration of justice in this area of law. It will create an undemocratic, irrational and inconsistent anomaly and, to me, that is indefensible,” he said.

Background to Jury Trials in Ireland Barton sets out the legislative history establishing jury trials, firstly in ngland, and how the law underpinning a right to a trial by jury developed in Irish law.

“The law governing trials by jury for civil wrongs in England and Wales were set out in the udicature Acts of 1 and 1 which basically listed out causes of action that carried an absolute right to trial by a jury which included defamation, trespass to the person, trespass to property, fraud/malicious prosecution, and so forth. Otherwise there existed a judicial discretion whereby trial by judge alone could be ordered. “ The common law right to trial by jury in Ireland was embodied in the Judicature reland Act 1 Section 4 . nlike England and Wales, the Irish Act provided that in every case in which a person had a right to trial by jury immediately before the coming into force of the act nothing

contained therein or in the rules made thereunder would prejudice that right.

“When Ireland became independent in 1 , s.4 of the udicature reland Act 1 was continued by s. 4 of the Courts Act 1 4. The right was abolished in Circuit Court civil cases by the Courts Act 1 1 but other than the restriction of the right to jury trial in personal injury cases as a conse uence of the Courts Act 1 , the entitlement to trial by jury in the High Court as of right in respect of all civil wrongs known to the law at independence remains the law to date.

“The position in Ireland regarding the right to jury trial for civil wrongs is much stronger, clearer and more definite than in England and Wales. I think the only exceptions here are in cases for the recovery of liquidated debt, landlord and tenant, recovery of land and contract. Obviously, cases in equity brought in chancery were never included because there was no right to jury trial in those areas,” he points out.

Change in 1988 The Courts Act 1 abolished the right to trial in accidentally caused personal injuries actions. At the time when that legislation was a ill, arton then a leading unior Counsel opposed its introduction.

“I thought then as I do now that abolition of jury trial for any cause where the right existed was completely undemocratic. Some of the claims that are being made now were being made in the mid 1 0s, that abolition would result in the duration of litigation being reduced, legal costs would go down and Judges would be more sensible than juries and would award less damages.

Consequentially, insurance premiums would also fall. We all know now that as I predicted then the exact opposite happened.

“I had taken a particular interest in personal injuries actions and was being briefed very regularly. I gained knowledge of what was likely to happen through experience in Dublin and on circuit with the High Court in Sligo and Dundalk. The number of counsel retained in a case was an issue at the time related to legal costs.

The practice was to brief two seniors and one junior for each party. The Bar had a meeting around 1 , which attended, at which a decision was taken that I thought was unbelievably stupid. They decided to maintain the existing practice unless juries were abolished in which event they would go to one senior and one junior counsel which was nothing less than an invitation to proceed with abolition. I couldn’t believe that they had adopted this position which of course was immediately noted by the

Autumn 2024 dsba.ie

Cross Examination

Photography: Bryan Meade

Minister and the Department of ustice.

“I had kept a notebook of awards at the time, to help myself in terms of advising clients and what kind of injuries were carrying what awards. So, this was purely for my own use. What I noticed was that in Sligo and Dundalk in particular, that towards the end of the sessions, the only way of getting your case heard during the particular session was to have a Judge alone hear the case, otherwise the case would go back to the next sessions. There was just not sufficient time for a jury case as it would need two days. Quite a number of litigants chose to have a judge alone decide the case in those circumstances. It is lost in history now but the biggest award ever in a High Court Personal Injury case of that time was made by a Judge alone and not by a jury. I noticed that in those cases where cases had been decided by judge alone in the absence of a jury, the awards were rarely if ever less than what one might have expected from a jury. This is not really that surprising. The judge would have been sitting with the jury for the previous two weeks so had a pretty

good idea what the jury was likely to award for an injury in a particular case. I discovered that Judges went out of their way to award at least as much as they thought a jury would do, or a bit more, to be on the safe side. I noticed that this became a well-established pattern.

“So, asked to see the Minister for ustice at the time. It was less complicated in those days and there were no special advisors as there are now. I made a submission to the Minister regarding certain claims that were being made, particularly around the level of damages that judges alone might award in such cases, claims which in my opinion based on my experience were without foundation.

I said that claims made by insurers and their representatives that damages were going to go down, that the litigation process was going to take less time, and that legal costs were going to be reduced with abolition did not stand up to scrutiny. I pointed out that the judgment of a single judge did not enjoy the same respect on appeal as the verdict of a jury and that consequently there was likely to be an increase in appeals, litigation

duration and legal costs, which is of course exactly what happened. Fianna Fail were in opposition, and they opposed the Bill and said that it was outrageous attack on democracy. “ suggested to the Minster for ustice that he get an undertaking from the Irish Insurance Federation that insurance premiums were going to go down. If sought I believe it was not forthcoming; the Bill was shelved. However, the Progressive Democrats were in the ascendancy and in their General Election campaign, they advocated a policy of reform through abolition of jury trial in personal injuries cases. Dessie O’Malley had a strong personal view against jury trials and so, as part of the coalition deal with Charlie Haughey, that Government introduced the Courts Bill which became the Courts Act 1 on the same grounds advanced by those advocating abolition.

“The Labour party opposed the Bill.

Mervyn Taylor read into the record of the Dail a statement made by the great William Blackstone, that jury trial was the best the Parchment 15

bulwark against the erosion of our civil liberties since it served to ensure impartiality in the decision-making process, to protect the litigant from judicial bias, to place in the hands of the public that share in the administration of justice which it deserved and to prevent the encroachment of more wealthy and powerful citizens and vested interests. That defence is as valid today as it was in the 1 th century. n 1 the citi en ended up losing a valuable democratic right for no return: insurance premiums went up,” stresses the former High Court Judge.

The Early Days Mr. ustice arton explains how he got into law nearly by accident and that a then unknown condition of dyslexia created immense challenges for him.

“I didn’t know it at the time, but I was dyslexic at school and so a lot of people thought I was unintelligent. So, it was uite a struggle to get a Leaving Certificate when you were dyslexic. You know there is something wrong, but you don’t know what it is, and it hadn’t been diagnosed but by sheer hard work I managed to get enough subjects in the Leaving Certificate that allowed me just to go to university. My parents, I think, were nearly more surprised than I was.”

The Barton family had a successful business in Donnybrook and young Bernard had the option of going into the family business. The Bartons were involved in the importation, wholesale distribution and retailing of motor cars and had the main agencies for Rover, Austin Morris and Citroen, being the largest dealer in Ireland for the latter. However, his parents ensured that continued education was vital, and he headed to CD. “ went into a lecture in my first week in CD and the lecturer was Professor ohn Kelly. I was blown away by the experience. I said to myself, if this is what the next three years could look like, I am going to do this!”

After obtaining his law degree in 1 , ernard worked with the rish Management Institute for a year and then worked in the family business until 1 as well as doing

stints for other companies like Brittains and Ashenhurst Williams, the importer of Citroen cars. He learnt the business on the oor and these five years of practical work gave him an invaluable grounding in life and commerce.

Route to the Bar Planning to leave the commercial world and take up a career as a Barrister presented a big crossroads in Bernard’s life. His wife Anne Marie was working with ank of Ireland, and he had good job with the family business. “When I told my father that I was going to the Bar to start a legal career, he asked me for the keys of the car I had been using; I had to walk home. It was a real burn the bridges behind you moment.

I used to think at the time it was cruel but actually he was being cruel to be kind. He said if you are going to go into the Bar you need to have no way back. You have to put everything you have got into it. It was tough advice, but he was absolutely correct and it made me hungry.”

Before embarking on his new career at the Bar, he had a conversation with then High Court Judge Tom Finlay who was a family friend. “I asked him for some advice on a career at the Bar and he said to me the law is a very ealous mistress . It took a while for the penny to drop but what he was saying was life at the Bar was going to be all consuming and that myself and my wife needed to know this before I left the family business. I never forgot that advice.”

Bernard took up his career at the Bar and devilled with the late Peter Shanley. In the early years at the Bar, he was exposed to working on civil jury trials. “I was excited to see sparks on the table. It was a very di erent experience to reading out affidavits in the Chancery Court. There was real theatre before a jury and I said to myself, my God, this is the real advocacy and where I want to be.”

This was the start of a very successful career as a junior counsel, and he plied his trade both in Dublin and on circuit. He recalls becoming very busy in a short period of time with briefs literally out the door.

Before embarking on his new career at the Bar, he had a conversation with then High Court Judge Tom Finlay who was a family friend. “I asked him for some advice on a career at the Bar and he said to me 'the law is a very jealous mistress' 16 the Parchment

He was a dutiful Junior to many of the leading seniors of the day, including the late Fergus Flood. But a memory sticks in his mind about how fickle the conveyor belt of work can be. He recounts how there were cages in the Four Courts where briefs were delivered, and it was easy to see the volume of briefs barristers were getting. “I was following Fergus to Court one day and he had three briefs under his arm. He stopped at his cage, and it was empty. o rats in the trap today ' he said to me. Even this man, who was completely run o his feet had an issue of insecurity as to where next week’s work was going to come from. This concern never leaves you at the Bar.” He took silk in 1 . He says that if a Barrister was interested in becoming a silk back in the day, the practice was that a prospective Senior Counsel would phone up the Chief Justice’s secretary and ask to meet with the Chief Justice ‘for tea’. “When I met with Liam Hamilton he said to me, ‘ was wondering when you would come and see me and after that I was recommended to the Attorney General.” A continued busy practice awaited Bernard Barton SC as he had also carved out a reputation for himself as one of the leading Counsel in personal injuries actions, both Defence and Plainti .

He was also acting in a considerable number of cases before the Hepatitis C Tribunal and in wide-ranging and highprofile litigation.

But his world came to a crash in the lead-up to Christmas in 00 . “ had a T A or mini stroke. I was paralysed down one side. I was taken by ambulance and by the time I got into the hospital thankfully the feeling in my left side was beginning to recover. The next morning, more sensation had return. Michael Hutchinson, the Neurologist, came to see me. I said to him r. utchinson can leave hospital now as have a ribunal case on today , and he just looked at me and he said what ... absolutely no way you ve had a minor stroke ” “That news percolated to the Tribunal which made its way back to the Law Library and word was out that I had a heart attack. I had the Christmas vacation to recover, and I did not go back to the Law Library until the end of that January when I was met by Vincent Foley SC who when he saw me raised his hand and said top where do you think you are going I said I was going back to work, he replied ou can t have divided your practice amongst your colleagues .

“I reduced my workload to some extent.

The experience put life in perspective and later that year applied for judicial office.

I was unsuccessful and decided to abandon the idea. I continued in practice until asked

Autumn 2024 dsba.ie

Cross Examination

to apply in 014, when was fortunate to have been chosen to serve.”

The Defamation (Amendment) Bill 2024 We return to the burning issue of the Government’s proposed legislation and discuss in more detail the ramifications if it is enacted by the Oireachtas. “The primary consequences of abolition of the citizen’s legal right to jury trial are twofold, firstly the litigant is deprived of the right to choose whether or not to have the case heard and determined by a jury of fellow citizens and, secondly, as a jury will no longer be required to decide the facts in such cases, the public will in e ect be removed from involvement in the administration of justice, consequences which are profoundly undemocratic.

“In essence, if the proposal is enacted, the democratic input into the decision-making process inherent in a trial by jury would be extinguished. It is in my view that the enormity of what is being proposed in public policy terms is not fully appreciated by the members of the Oireachtas.

Abolition of the legal right to trial by jury

would constitute a fundamental shift in public policy which has long underlain the administration of justice in Ireland both before and after independence.

“Put simply, the right to jury trial is one of the oldest civil rights know to the law; enshrined in Magna Carta, it lies at the heart of our system of justice.

“For centuries it has been established public policy that in proceedings for serious criminal o ences and torts, fact finding should be carried out wherever possible by a jury of fellow citizens and not by a judge alone. The legal right to trial by jury for serious criminal cases was considered so fundamental to the law that it was a orded Constitutional protection by Art. of the Constitution.”

Mr. ustice arton points out that the Oireachtas has already addressed the issue of achieving proportionality in the level of awards in proceedings for civil wrongs involving personal injuries. “The Judicial Council were empowered to draw up appropriate guidelines. These were drawn up by the Council and now have the force of law. The purpose of the guidelines is to

provide guidance on proportionality in any given award and to ensure improved consistency of awards, making award levels more predictable in the process.

“The e ect of the Supreme Court decision in the Higgins case is designed or aimed at achieving the same objective in Defamation actions. While the judgment is binding on the Court of Appeal and the High Court, I see no good reason why, if required, the guidelines could not be put on a statutory footing. If only out of respect for the court the guidance provided should be a orded a reasonable time to bed in, particularly as there is good evidence that they are working. The Court of Appeal, applying the guidelines, unanimously upheld the verdict and award of a jury in Gordon and the Irish Racehorse Trainers Association.

“The Supreme Court has observed on more than one occasion that the jury are in a unique position to decide whether or not a statement is, or is not, defamatory in the eyes of reasonable members of society. Who is better than the representatives of society the jury to make this decision P the Parchment 17

Enforcement of Settlements in Litigation Gearoid Carey assesses a recent High Court decision which has highlighted that care needs to be taken when settling a case

I

n the recent case of plc veryday inance v. oran 0 4 HC , the High Court had to address whether new proceedings had to be brought to enforce a claimed settlement where the parties had failed to include a specific enforcement mechanism in their original proceedings.

The case involved summary proceedings where, after the first day of trial and following settlement negotiations, the court was asked to make no order and to adjourn the proceedings. The defendant had signed a written settlement agreement, but did not comply with the relevant payment obligation and disputed the enforceability of the agreement. Despite the fact that the agreement was not executed on behalf of the creditor, it still brought an application in the existing proceedings to the e ect that all claims were compromised under the settlement.

However, before being in a position to adjudicate that dispute, the court first had to determine the proper procedure for doing so whether as part of the existing proceedings or whether fresh proceedings were necessary.

The case highlighted the importance of ensuring that, if the intention is to permit any issue regarding the enforcement of the settlement to be dealt with

18 the Parchment

as part of those original proceedings, an appropriate procedural mechanism should be built in. As a general principle, and as is well understood, an agreement to settle litigation represents a contract between the parties. If a party defaults on its obligations under the terms of any settlement reached, the innocent party can seek to enforce the relevant terms. Subject to the obligations in the agreement, this may involve seeking specific performance or damages for breach.

Should it be necessary to seek enforcement of an agreement, it will usually be necessary to commence fresh proceedings, but to avoid the delay and cost of additional litigation in the context of a settlement, a procedural mechanism may be included within the compromised proceedings.

Mr. Justice Simons observed that, since a settlement is itself a contract, if parties wish to have the facility to pursue enforcement of a settlement as part of their original proceedings, then specific provision is required to avoid the necessity of having to initiate separate proceedings. Although this can take di erent forms, Mr Justice Simons noted that the “essential element is that an order is made by the court which recognises either e pressly or by necessary implication that the underlying claim has been superseded by the settlement

Autumn 2024 dsba.ie Gearoid Carey is a partner in the Dispute Resolution Team of Mason Hayes & Curran and is a member of the DSBA Commercial Law Committee

agreement but that the parties are entitled to re-enter the proceedings for the sole purpose of enforcing the settlement agreement . However, the difficulty here was that no order of that type had been made and the proceedings had simply been adjourned. Therefore, the question to be determined was whether that arrangement allowed enforcement of the purported settlement within the existing proceedings.

In considering this, he considered the guidance re ected by two Court of Appeal authorities, v.

Costigan 0 1 CA 0 and c aughey v. c aughey 0 4 CA 1 . From these, he recognised that the clear public interest in promoting settlement would be undermined if the courts did not ensure compliance and they should not obstruct the implementation of lawfully concluded settlements. Further, if proceedings were struck out with liberty to re-enter pursuant to the terms of a settlement, that should be interpreted as being subject to the condition that the proceedings may be re-entered for the purposes expressed in the terms of settlement, even if not expressly referenced in the order.

Here, Mr. Justice Simons ultimately concluded that the adjournment agreed in this case could not be interpreted as permitting enforcement of the

settlement within the existing proceedings. The adjournment sought and granted involved no doubt or ambiguity and it had been expressly stated that no further order was necessary. Therefore, “the consensual ad ournment of the proceedings cannot be imbued with any greater signi cance and treated as allowing for summary enforcement of the then intended settlement. In addition, on the facts of the case, since the agreement had not been fully executed, the adjournment could not have brought the proceedings to an end subject to the potential enforcement of an intended settlement agreement. He therefore concluded that the dispute was not capable of being resolved within the existing proceedings, noting that adjournment alone was too neutral a step to be treated as having such e ect.

The decision confirms that, if parties wish to avoid commencing fresh litigation to pursue enforcement of a settlement reached in proceedings, a simple adjournment with no further order will not suffice. Rather, a specific procedural mechanism will be re uired before enforcement of any purported settlement can be pursued through the existing proceedings. Otherwise, fresh proceedings to enforce the purported settlement agreement will need to be brought. P

Litigation

If parties wish to avoid commencing fresh litigation to pursue enforcement of a settlement reached in proceedings, a simple adjournment with no further order will not suffice the Parchment 19

DSBA September Golf Outing

The DSBA Golf Society held an outing at St. Anne’s Golf Club, Dublin on the 12th September 2024.

The Society is open to all members of the DSBA and their guests and our outings provide a fun and relaxing way of meeting with colleagues outside of the work environment.

If you would like to join the DSBA Golf Society and enjoy a future outing, contact Eamonn Shannon on 01 5397231.

Photography: Conor Healy

Left to right: Vincent Shannon, Stephen Fleming, Bob Connolly and Matthew Kenny

Left: David O’Brien, Pat Coady, Hugh O’Neill, Tim Hughes Far left: DSBA President Matthew Kenny tees off

Right: James O’Mahony, Sheila O’Brien, Darragh Hulgraine, Cian Kiley Far right: Eamonn Shannon, Caroline Shannon, David Walley, Patricia Walley

Left: Mary Molloy Far left: Mary Molloy, Fiona Duffy and Mary C. Dillon

20 the Parchment

YOUR LE GAL COSTS PA RTN E R McCann Sadlie r, Lega l Costs Ac c ounta nts ha s over 100 10 years esults dr eam of com bine d le gal costs ex perienc e. We a re a results driven team ised staff. of le g al cost s p ra c titioners suppor ted by spec ialised ters inc ludi C e nt ral to ou r practice is the swift attentionn to a ll ma tters luding t h e p reparation of b ills of costs for adjudic a tion ion opposing oppo bills lls or gene ge ra l ad vicc e s, s -c oonte ntious bu siness. in eve r y are a of litiga tion and non-c busi ness.

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24/09/2024 21:19

“SCARP” – The Practitioner’s Toolkit n February 0 0, Covid-1 reached reland and had a devastating e ect on many small businesses. n response to the threat of another financial crisis, legislation was introduced that incorporated a new restructuring tool known as the Small Companies Administrative Rescue Process “SCARP in December 0 1. raham Kenny outlines the process

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CARP is based largely on the examinership model, but notably does not re uire an application to court for its commencement. The idea behind SCARP is to give companies breathing space from their creditors in order to implement a restructuring plan, which ordinarily includes the writing o of a portion of creditors’ debts.

The biggest challenge for practitioners is identifying when this legislation can be used and how they can apply it to their clients. This will undoubtedly become a new source of work for practitioners as the likes of retail shop owners, pubs, restaurants and some construction companies struggle with rising costs and reach out to their solicitor for help.

The following guide aims to enable practitioners to identify likely candidates for SCARP and consider whether a Rescue Plan under the new legislation is possible.

Who can Apply?

The Companies Rescue Process for Small and Micro Companies Act 0 1 is aimed at protecting “small and “micro companies.

Small companies are defined as having an annual turnover of up to 1 million, a balance sheet of up to million and up to 0 employees.

Micro companies are defined as having a turnover of up to 00,000, a balance sheet not exceeding 0,000 and up to 10 employees.

How does a Company Prepare for SCARP? The first step a company should take in considering the SCARP process is that the directors should 22 the Parchment

prepare a statement of a airs in accordance with section 4 of the act.

The statement of a airs is accompanied by a statutory declaration that is then given to a Process Advisor.

What is a Process Advisor?

The Process Advisor is ordinarily an experienced insolvency practitioner who will attempt to restructure the company’s debts. t may be noted that the company’s auditor or accountant cannot act as its Process Advisor.

The Process Advisor will review the company’s statement of a airs and other financial information as set out in Section C 4 and then outline their determination as to whether the company has a “reasonable prospect of survival . t is important to note that a Process Advisor does not take executive powers and that the board of the company maintains full control. The Process Advisor’s fees are subject to super-preferential status over all other creditor claims.

How does the Rescue Process Commence? f the Process Advisor determines that the company does have a reasonable prospect of survival, then they will confirm this in writing to the directors of the company.

Section D sets out that, within seven days of receipt of such confirmation, the directors shall convene a board meeting to consider whether the appointment of a Process Advisor is appropriate.

Section K compels the Process Advisor to notify employees, creditors and the Revenue Commissioners within ve days of their appointment.

Autumn 2024 dsba.ie Graham Kenny is a partner in the Litigation & Dispute Resolution Department at Eversheds-Sutherland LLP

Company Law

Section O states that creditors must acknowledge receipt of such notice within seven days and further information regarding their claim within 14 days.

Can a Creditor opt out of the Rescue Process?

Section L provides a list of potential excludable debts. This list includes the Revenue Commissioners.

Notably, the holders of such excludable debts have 14 days to notify the Process Advisor of their intention to be excluded from the rescue plan. Such creditors must give reasons for their decision to opt out.

From anecdotal evidence, it appears that the Revenue Commissioners are largely supportive of the process and generally determined to opt in.

What is a Rescue Plan?

Section sets out the matters that must be incorporated into any Rescue Plan. These include: a statement of a airs. the likely outcome for creditors on a winding-up or receivership. the e ect of the plan on each creditor. the reasons why the plan is fair and e uitable. details of the Process Advisor’s remuneration.

How is the Rescue Plan Approved?

Section T puts on onus on the Process Advisor to call a meeting of members and creditors as soon as is practicable after preparing the Rescue Plan.

Section T 4 re uires that such meetings shall be fixed for a date no later than 49 days after the date on which the Process Advisor was appointed. t is important to note that creditors must be give seven days notice of such meetings, so in reality the meetings must be convened no later than day 4 .

Section 4 sets out that a Rescue Plan shall be deemed to have been accepted by a meeting of members or creditors when 60 percent in number, representing a majority in value of the claims represented at that meeting, have voted in favour.

Section sets out that the Rescue Plan shall be binding on members and creditors where at least one class of impaired creditor accepts the plan and, furthermore, that 1 days have passed from the date of filing of the notice of approval in the relevant court office and no objection is filed in accordance with section C. Section re uires that creditors are given notice of such approval within 4 hours. t is important to note that under section the Rescue Plan will not become binding on members and creditors until 21 days have elapsed from the filing of the notice of approval.

What does it mean for a Process Advisor to “Certify” Certain Liabilities?

Like xaminership, the Process Advisor is given the power under section AA to certify company liabilities.

This certification means that such liabilities are treated as expenses of the Rescue Plan and therefore give such creditors a preferential status.

This provision is often used as an incentive to encourage creditors to continue to trade with the company while a Rescue Plan is formulated.

Practitioner’s Checklist before Entering SCARP! As can be seen from the above, the timelines in SCARP are tight. t is recommended therefore that the following should be discussed with your client before entering into the process: Prepare an up-to-date Statement of A airs of the Company.

Provide a full listing of all Company’s creditors and their addresses.

Provide a full list of retention of title claims and existing stock details.

Consider how a Rescue Plan would be funded.

Will directors introduce funds Prepare a statement of the estimated outcome in a li uidation and compare this with a proposed Rescue Plan.

The Future of SCARP Considering the stark numbers of rising small business failures, particularly in the hospitality space, it is incumbent on practitioners to seek the appropriate advice from corporate restructuring specialists when consulted by companies in this uagmire of historical debt.

The sooner this advice is sought and considered, the more realistic the company’s chances of survival will be. SCARP o ers a vital lifeline to many struggling companies, and in the coming months, it needs to become a standard go-to option for practitioners and their clients. P

t is important to note that under section the Rescue Plan will not become binding on members and creditors until 1 days have elapsed from the filing of the notice of approval

the Parchment 23

How did we get here and where do we go now?

Practitioners are all too aware of the issues that have arisen in practice since the new system for nduring Powers of Attorney “ PA was introduced on the April 0 on the commencement of the Assisted Decision-Making Capacity Act “the 01 Act . ine Hynes SC analyses the issues faced and what can be done

T

he 01 Act, as originally drafted, was broadly similar to the Powers of Attorney Act 1 . The PA instrument was to have been specified drafted by the relevant Minister by way of regulation and registered with the Decision Support Service “DSS when the donor lost capacity.

Two-stage Registration Process The Assisted Decision-Making Capacity Amendment Act 0 altered the situation greatly.

The changes included a two-part registration system which means firstly that the PA instrument must be registered with the DSS on creation and, secondly, when the donor loses capacity, it must be notified to the DSS by way of a further registration process. The Law Society made submissions on the proposed changes which outlined its serious concerns regarding the new two-step registration process and recommended that this should not be adopted. The submissions can be accessed here: 24 the Parchment

www.lawsociety.ie/globalassets/documents/ submissions 0 -submission---adma- 01 .pdf The Law Society’s submission and recommendation is re ected in the report of the Joint Committee on Children, Equality, Disability, ntegration and outh Report on the pre-legislative scrutiny of the eneral Scheme at recommendation which called for the “ emoval of the two-step process for registering an . lternative approaches should be developed in con unction with s and other stakeholders including those who made submissions to the ommittee on this matter.”

Significant stakeholders such as the solicitors’ profession were not consulted further on foot of that recommendation. The new DSS system does not serve donors who need to create PA instruments on an urgent basis; donors who are not digitally skilled and those donors who do wish to instruct their solicitors in the creation of their PA instruments.

Autumn 2024 dsba.ie Áine Hynes SC is a partner at St. John Solicitors and a former President of the DSBA

The Devil is in the digital The Amendment Act also shifted responsibility for the specification drafting of the PA instrument from the Minister to the Director of the DSS. With a further late amendment to the 01 Act, in May 0 insertion of a new s. , the DSS can specify that the instrument is in electronic form. The application is to be made via the DSS Portal System. This is called MyDSS. The following is necessary in order to access the digital MyDSS portal: 1. The donor and attorneys must be computer literate . The donor and all attorneys must create a MyDSS account online . n order to create a MyDSS account, the donor and all attorneys must have their own email address and a PPS number 4. To verify a MyDSS account, the user must have a verified My ov D account . To create a My ov D account, the user must have a mobile phone and a Public Services Card PSC

Enduring Power of Attorney

. To obtain a PSC card, the user must make an appointment and present in person at their PSC Centre with sufficient identification.

There is no doubt but that the donor must be digitally literate just to access the MyDSS Portal.

Whilst the laudable intention of government is that donors should create PAs at an early stage, the reality is that many people wishing to create an PA do so in circumstances where they are concerned about losing capacity, following on from a diagnosis of dementia or Al heimer’s disease. These are conditions which, in the main, a ect an older cohort of the population. That cohort are uite likely to be excluded from creating an PA on the MyDSS system unless they are assisted in doing so.

There is no doubt but that the donor must be digitally literate just to access the MyDSS Portal

But what about Solicitors?

Crucially, there is no solicitor portal, so solicitors cannot access the portal system directly on behalf of their clients. The Revenue’s online ROS system allows a tax adviser to prepare and file returns for a the Parchment 25

The requirement for solicitors to have access to the DSS portal system should have been a key consideration at the initial design stage of the system

taxpayer, solicitors have their own portals to access Tailte ireann, the Companies Registration Office and the njuries Resolution oard’s web-portal. The re uirement for solicitors to have access to the DSS portal system should have been a key consideration at the initial design stage of the system. t has become clear that the DSS digital system was not designed for donors to have their solicitors involved in the PA application process. t also became evident on commencement that the only way for solicitors to act for their clients on the creation of an PA instrument was for solicitors to log onto their client’s MyDSS Portal. The position is that many solicitors do not wish to use their client’s MyDSS portal as there is an entirely reasonable apprehension that it may increase risk for the solicitor concerned. n addition, solicitors report that many of their clients do not have an email account it would not be appropriate that a solicitor create an email account for a client.

The DS A and the Law Society met with the DSS shortly after commencement and made the following re uests: That the DSS make properly available a specified PA nstrument as was the case for the freely available specified instrument under the 1 Act this is a re uirement under the 01 Act That a Solicitor Portal be provided That there would be a web-based form to use with clients or a paper-based workaround for solicitors and their clients. n une 0 , following communications and meetings with the DSS, the DS A and the Law Society, an arrangement was reached that solicitors could complete a paper-based application for their clients. This has proven very time consuming however, many solicitors wish to use this manual process for the reason stated above.

Removal by the DSS of the Paper-based Option where a Solicitor is Acting for a Donor n March of 0 4, the DSS published a new Accessibility Policy. This states that where a person

26 the Parchment

has accessibility issues, they may complete a manual paper-based application. However, if they are being assisted by a professional, they will not be considered as having accessibility issues. This means that where a solicitor is acting for a donor, they can only do so via their client’s MyDSS portal. On learning of the proposed changes to the accessibility policy in April 0 4, the DS A and the Law Society met with the DSS to outline the grave concerns about the impact of this for clients and solicitors. The Law Society also met with Minister Rabbitte and the department of Children, Equality, Disability, Integration and Youth.

The Law Society again called for a Solicitor Portal, and in the meantime, submitted that a paper-based option must remain in place where a solicitor does not wish to use their client’s MyDSS. However, despite negotiations, the DSS was to commence the Accessibility Policy from the th of uly 0 4. am aware that many solicitors are not prepared to use their clients’ MyDSS portal and it is entirely the prerogative of those solicitors not to do so. am also acutely aware of deep disappointment within the profession that many solicitors can no longer provide their clients with the reassurance that they have left their solicitor with their a airs in order. The new Accessibility Policy means that donors assisted by professionals, including solicitors, are denied from having access to the paper-based process and in e ect there is now a “digital only policy in respect of those donors. As such, the Policy serves to exclude a significant number of donors who do wish to use the services of their trusted family solicitor.

Where do we go now?

The DSS has advised that a solicitor’s portal will not be available in the short term the DSS have advised that it will cost in excess of 1. million and take at least 1 months to set up. There has been no commitment to the creation of a solicitor’s portal and the reality is that despite great e orts by many solicitors, the DS A and the Law Society, that this solution to the current difficulties will not be made available.

Clearly, solicitors cannot be compelled by any agency to act for clients where they have concerns about using their client’s MyDSS portal. Nor can solicitors be compelled to complete the Legal Practitioner statement re uired to validate an PA instrument as prescribed by virtue of s. 0 of the 01 Act. ndeed, it is difficult for a solicitor to certify that they have no reason to believe that the instrument is being executed by the donor as a result of fraud, coercion or undue pressure unless they have been involved in the process from the outset. t is likely that consideration will be given to the removal of the re uirement for a Legal Practitioner’s statement. However, the indemnity provided by solicitors as to the integrity of the process, which serves to avoid complaints and future litigation, will likely need to be carefully considered by the Oireachtas, prior to any such removal.

Further consideration must also be given to the validity of the DSS system as currently operated. The legislation does not envisage an initial submission of an application form, after which the Director provides the donor with the specified form for the instrument and documentation to be completed. The DSS website notes that on making an application, the donor “will be

Autumn 2024 dsba.ie

Enduring Power of Attorney

provided with forms that are uni ue to you as part of that application . t further states that “the uni ue forms are the only forms that will be accepted by the Decision Support Service . This does not appear to be in line with the legislation which provides that an application for registration will take place after the execution of the PA instrument and after the completion of supporting documentation s. 1 . t is easily foreseeable that a client may wish to make an PA in urgent circumstances prior to going through the application process currently being employed. f that PA is materially in line with the re uirements of the statute, it would appear by virtue of s. 1A that it should be accepted for registration.

How to Assist Clients in Supporting their Will and Preference The current system has not responded to the needs of donors only 1 PA instruments were registered in the first 1 months of operation of the DSS system. t is inevitable that solicitors will continue to have concerns about their role in the PA process for all

the reasons described above. There does not appear to be any simple or short-term resolution to the problems which have been well-rehearsed within the profession. Whilst such resolutions are actively being pursued by the DS A and the Law Society, solicitors may wish to consider alternative means of ensuring a client’s will and preference are respected in the event they lose capacity.

Affidavit of Wishes in the Event a Person Loses Capacity Richard Hammond S.C., speaking at the Solicitors rowth Seminar on nduring Powers of Attorney on the 0th of May 0 , discussed the creation of an Affidavit of Wishes. He noted that in view of the difficulties being faced in the creation of an PA, a client may wish to complete an Affidavit of Wishes in the event that client loses capacity, and an application is made to the Circuit Court.

The Affidavit might usefully set out who the client wants to appoint as a Decision-Making Representative and what matters the DecisionMaking Representative will deal with. P the Parchment 27

Sky's the Limit Killian Morris caught up with Thomas McNamara, Director of Legal at Ryanair, to discuss his career to date and all things Ryanair

When did you qualify? ualified in 00 . initially attended N Galway, where I earned a Bachelor of Corporate Law in 00 and a achelor of Law in 00 . then completed a Master of Laws at Trinity College in 004. mmediately after Trinity joined Dowling Kilpatrick Solicitors, a general practice formerly opposite Leinster House on Kildare Street, where I worked as a legal executive, trainee, and solicitor, and got extensive experience in civil and commercial litigation, employment law, corporate governance, and other legal areas. Dowling Kilpatrick provided an excellent foundation for the wide-ranging issues manage at Ryanair, which joined in 00 .

If you hadn’t become a solicitor, what would you have done?

If I hadn’t become a solicitor, I might have become an architect. My father was a builder, and grew up working on construction sites. could fill a cement mixer from about the age of six and helped fund myself at university through building work during holidays. Transitioning to an office role at Dowling Kilpatrick was a bit of a culture shock, as I was more 28 the Parchment

familiar with cement mixers than fax machines, which people still used back then.

Have you anybody who has mentored or guided you in your career and what influence have they had on you?

My master at Dowling Kilpatrick, Vincent Dowling, was a skilled and approachable lawyer who taught me the importance of understanding both legal principles and the client’s perspective. My parents also instilled in me a strong work ethic, which has been invaluable at Ryanair, where hard work is highly valued.

Describe your role as Director of Legal in Ryanair manage legal issues at both national and levels to support the company’s commercial and operational strategies. The scale of Ryanair’s operation it’s the second most valuable airline on the planet, carries around 00 million passengers annually on , 00 daily ights across countries generates a lot of complex and novel legal challenges. oversee a large team, located across Dublin, Madrid, and Warsaw. We manage legal issues across Ryanair’s network and in the

Autumn 2024 dsba.ie Killian Morris is a partner at AMOSS Solicitors.

He is a member of the Parchment committee

20 Minutes With...

the Parchment 29

While dealing with well-informed colleagues can be challenging, it also o ers great opportunities for collaboration, expanding your own professional and commercial knowledge, and makes the work more interesting S, where approximately 40 of Ryanair stock is traded on NASDA . We handle a very broad array of issues, including commercial litigation, consumer law, intellectual property, property law matters, contract advice, company secretarial work and corporate compliance. We are a busy team that takes a hands-on approach to litigation.

As an in-house lawyer, you don’t have fee targets or the need to bring in new work. What particular challenges face an in-house lawyer that solicitors in private practice might struggle with?

Those challenges are a large part of why enjoy my role. n private practice, you have many clients, and your understanding of each varies based on how fre uently you work with them. n-house, you advise di erent parts of the business, and your clients your colleagues are often as knowledgeable about the company, and to a degree its legal issues, as you are. While dealing with well-informed colleagues can be challenging, it also o ers great opportunities for collaboration, expanding your own professional and commercial knowledge, and makes the work more interesting. Additionally, in-house lawyers are often required to provide immediate legal advice to colleagues without appointment or warning. This can be demanding but is also satisfying when issues are resolved quickly without the formalities required in private practice.

The Ryanair model of driving down prices by cutting costs: does the legal profession have anything to learn from this?

I think that Irish lawyers are on par or better than those elsewhere. n terms of managing costs, for Ryanair it’s all about efficiency. As rish lawyers, think we’re generally uite efficient within the Irish system, but we could learn from other legal systems. One area think could benefit from reform is the rish discovery process. t is expensive and time-consuming, with discovery motions fre uently taking up more court time than the core dispute. n my experience, discovery usually has little impact on the outcome of a case. n Civil law jurisdictions, document production is typically more restricted and streamlined, prioritising efficiency and minimising extensive pre-trial litigation.

What was your most memorable moment in your career to date?

The state-sponsored hijacking of ight 4 , where a Ryanair ight traveling from Athens to ilnius, 30 the Parchment

was forcibly diverted to Minsk, Belarus, under the pretext of a bomb threat. The real motive behind the diversion was to arrest Roman Protasevich, a Belarusian opposition journalist, and his then girlfriend, Sofia Sapega. n the aftermath, Michael O’Leary received Sviatlana Tsikhanouskaya, the exiled opposition leader of Belarus, at Ryanair HQ to discuss the incident, and participated in the meeting. Tsikhanouskaya had ed elarus in 0 0 after running against the authoritarian leader Alexander Lukashenko in the presidential elections. As a child she actually spent many summers in Tipperary, as part of a programme for children a ected by the Chernobyl disaster. She is an exceptionally brave individual, and the meeting left a lasting impression on me.

As Director of Legal in Ryanair you deal with a lot of private practice lawyers. What advice would you give to solicitors looking to be hired by a client such as Ryanair? t will be no surprise that we look for value for money.

For me, value includes receiving concise, practical, and clear advice. As instein supposedly said, “make everything as simple as possible, but no simpler. Also, private practice lawyers naturally focus on specific disputes, while in-house lawyers often must maintain a global strategy across several jurisdictions. For a client like Ryanair, it’s crucial that private practice lawyers can understand this and adapt to a global perspective.

What is the most interesting piece of litigation you have been involved in in your time at Ryanair?

As is well documented in the media, Ryanair has been involved in lots of interesting cases, both in Ireland and abroad. The “screenscraper cases against On the each who has since become a Ryanair partner , illig uege, Vola, Flightbox and others, stand out as among the most interesting. This litigation highlighted the issue of unauthorised third-party websites Online Travel Agents or OTAs using screenscraping technology to sell Ryanair tickets at in ated prices. This practice often results in consumers being overcharged and having difficulties managing their bookings directly due to OTAs providing Ryanair with incorrect passenger details. The cases have also contributed to rish jurisprudence by clarifying how traditional contract principles apply online. We recently filed a similar case in Ireland against eDreams, which I expect will be very interesting also.

Outside of reland, enjoy litigating in the S, where we have had a few cases over the years. The S system is very interesting, and they have an exciting way of doing things. t’s not uite like an episode of “Suits , but it’s closer than you might expect. We currently have a case against ooking.com under the S Computer Fraud and Abuse Act. n uly, the jury found that ooking. com had breached the Act by accessing our “protected computer , the Ryanair website, without authorisation and with intent to defraud causing us harm in excess of k the minimum technical damages re uired for invoking the Act . This set a S precedent, as no private entity, American or otherwise, had successfully relied on the Act in this way before. We were awarded k in damages, as we had made it clear throughout that our concern was not money but protecting our customers.

Autumn 2024 dsba.ie

20 Minutes With...

Photography: Bryan Meade

We are currently applying for an injunction on the back of that decision to prohibit ooking.com from accessing the Ryanair website. ooking.com has appealed and moved to overturn the decision, so the case may proceed through several more stages, potentially reaching the S Supreme Court.

always with Ryanair but since becoming a father, don’t travel as much as used to. Occasionally, travel for work, but my role usually requires me to stay in our rish H . My team generally get to travel abroad to court hearings, etc., which ’m a bit envious of.

Something most people don’t know about Ryanair/Michael O’Leary?

I have to say that I have been a bit spoilt with holidays, thanks to the significant discounts on ights Ryanair sta receive for themselves and their families.

My wife and I particularly love travelling to southern Spain and Portugal. We have also enjoyed city breaks in places like Paris, Rome, Amsterdam, and erlin.

However, if I was to describe my dream holiday, it would start with a ight out of Knock Airport after a weekend of celebrations when Mayo wins the Allreland. can dream.

Working with Michael, you ll see his generosity in sharing the benefit of his experience, industry knowledge and strategic insights with others. On cases like ooking.com, where Michael was deposed, as the lawyer it’s my job to guide him through that, but typically I’ll end up learning far more from him in terms of business and strategy.

In a similar vein, many people might not be aware of Ryanair s graduate programme. t’s a two-year initiative that o ers graduates hands-on experience across various departments, including Legal. Legal graduates work closely with senior sta , gaining practical skills and mentorship through rotations in di erent legal functions. The programme is very popular and attracts top candidates from all over the .

You must be well travelled in the role you are in. Do you always fly with your employer? used to take several short-haul trips each year

What would be your dream holiday?

What do you think is the biggest issue currently facing the legal profession?

A topic m particularly interested in right now is the introduction of legal partnerships, enabling solicitors and barristers to o er services jointly. The concept of legal partnerships was included in the Legal Services Regulation Act 01 but re uired an amendment to that Act to implement. This was done by the Courts and Civil Law Miscellaneous Provisions Act 0 , and the stage is now set for the rollout of legal partnerships. the Parchment 31

20 Minutes With...

We operate a hybrid model in Ryanair, which find works well, but being in the office is a great way for ambitious young professionals to rapidly develop skills, stand out from peers, and advance their careers

From my experience with lawyers in other countries and in the S, am a fan of the “one-stop shop system. The splitting out of solicitor barrister roles can lead to a duplication of work, increased complexity, and a less coordinated approach than in jurisdictions where firms provide both sets of legal services under the one roof. would hope to see reland embrace legal partnerships. While expect some specialist barristers may join legal partnerships, meaning their services will no longer be available to solicitors in general, that vacuum will no doubt lead to the emergence of equally competent specialists who have not yet had the opportunity to establish themselves. From a client perspective, believe it’s the most efficient and cost-e ective approach to litigation.

Describe an event in your personal life which has had the most important impact on your development as a lawyer rowing up in construction probably in uenced my approach to being a lawyer. When you must move 0 tonnes of concrete from one place to another using only a wheelbarrow, you learn to always look for the most direct and efficient path. That environment teaches you to be practical, efficient, and avoid timewasting at all costs. think these attributes promote a disciplined and results-oriented mindset and are highly positive for a solicitor.

Name one personal goal and one professional goal that you have over the next 12 months My wife and have a three-month-old and a threeyear-old at home, both girls, so my personal goals for the next 1 months are to just to enjoy this very fun,

32 the Parchment

very chaotic time, and try to get enough sleep… oh and hopefully at some point get the Paw Patrol theme tune out of my head.

Professionally, it’s very hard to single out one goal. ’d aim to conclude the S ooking.com case successfully, get the Irish eDreams case heard, as well as our case against the K National Air Traffic Service over the August 0 outage. There’s a lot more equally important goals as you continue east across the network. However, suppose my main goal is to ensure my team continues to learn, progress, and grow within Ryanair if manage that one, the rest will be more achievable.

Any advice for those entering the profession in 2024? highly recommend that new lawyers attend the office as many days as possible. We operate a hybrid model in Ryanair, which find works well, but being in the office is a great way for ambitious young professionals to rapidly develop skills, stand out from peers, and advance their careers. When urgent, high-profile tasks come up in the office more often that not they tend to be urgent find myself involving those present first.

Another tip ’d o er is start building your network early. Once again, going to the office helps. The enjoyment you get from your career is all about the relationships you build and the network around you. A good network will be a source of camaraderie, support, opportunities, and solutions.

Also, consider in-house roles. At Ryanair, you can handle litigation across multiple jurisdictions and make significant contributions to the business, regions, and customers. n-house opportunities like these are becoming more plentiful and are worth considering for new lawyers. P

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The Rising Costs of HealthRelated Claims enny Foley evaluates the recent Report of the nterdepartmental Working roup on the Rising Cost of Health-Related Claims which was published by the Minister for Health on the 1 th September 0 4. The roup was chaired independently by Professor Rhona Mahony with membership from across relevant overnment Departments and Agencies

Key Themes of the Report n examining these claims, the roup focused on the following key themes: xamining best international practice to establish how we compare and what lessons can be learned from elsewhere in terms of indemnity models that are in place in other jurisdictions, the cost of claims, the clinical incident rate and the incidence of cerebral palsy xamining whether there are ways to further improve the uality of services improve patient safety and thereby reduce the number of adverse incidents When an incident occurs, exploring ways to enhance the process to resolve matters faster and more efficiently Seeking to identify ways to reduce costs through a number of civil justice reforms, including the resumption of Periodic Payment Orders PPOs , the development and implementation of a preaction protocol PAP , case management rules and stabilising issues regarding the Real Rate of Return and Considering the health system’s approach to mass action claims. n recognition of the inherent sensitivities and human cost of harm associated with healthcare litigation, the roup commissioned niversity College Cork to carry out a ualitative study on Plainti 34 the Parchment

experiences of the medico-legal environment in reland, and met with a group of midwives, nurses, NCHDs and consultant doctors. Professor Mahony, in her introduction, states that: “No patient wishes to nd themselves seeking compensation for harm that has occurred because of a failure or error in care that may have had a devastating impact on their life and that of their loved ones. o clinician or healthcare practitioner wants to cause harm.

Six Strategic Priorities The roup identified six strategic priorities with the aim to reduce the re uirements for litigation in healthcare and improve the litigation process for those taking this path. The six strategic priorities are as follows: 1. Capturing data, learning from adverse events and promoting key research . Prevention of adverse events: strategy, people and resources . nhanced response when harm occurs 4. Care for babies born with Neonatal ncephalopathy and the other Maternity nitiatives . Faster and more efficient resolution of claims and . Standardised approach to Mass Action claims.

Recommendations The

roup set out corresponding recommendations

Autumn 2024 dsba.ie Jenny Foley is a Healthcare Partner at RDJ LLP and is a member of the DSBA Litigation Committee

for each of the six strategic priorities. The recommendations, specific to litigation, include the following: 1. The implementation without delay of recommendations made in a number of previous reports, along with some additional recommendations, advocating changes and improvements to the management of clinical negligence claims to include: a. The introduction of a pre-action protocol with sanctions for a party who fails to adhere to the protocol, as recommended in the Meenan Report b. The facilitation of earlier mediation, where possible and agreeable to both parties c. Amendments to case management Rules of Court should be made, to include a stipulation that e uivalent rules apply to both sides, and that joint expert meetings hot-tubbing should be re uired to take place and d. A dedicated Court list should be established with udges in place with specialist knowledge of medical negligence litigation, or other appropriate measures to facilitate the earlier hearing of medical negligence cases. . The facility for Courts to award Periodic Payment Orders should be resumed . A panel of medical expert witnesses should be developed initially on a voluntary basis which could

Litigation

be overseen by an existing regulatory body with appropriate expertise 4. The roup recommends that the personal injury discount rate, also known as the real rate of return, should be reviewed at regular intervals by the Minister for ustice and . The roup recommends that a medical records system, with uni ue identifiers, be put in place to facilitate better and more timely provision of records and that a system be put in place so that a patient or their solicitor can view their electronic medical records. n addition, a training programme for hospital sta should be put in place regarding best practice around medical records. n relation to the resumption of the Periodic Payments Orders, much work has been carried out by Working roups on the Discount Rate and ndexation. The reports of these groups concluded that 1 there is no material evidence to justify a change in the current Discount Rate currently 1 for future care costs and 1. for other financial losses , and the ndexation Rate should be based on a combination of the Harmonised ndex of Consumer Prices H CP and Annual Rate of Change ARC in nominal hourly health earnings.

The Report has been widely welcomed and it is hoped that it will finally provide the impetus for long awaited reform in this area of litigation. P the Parchment 35

A Divorce Coach – a new Family Law Solution?

Divorce is never just a legal matter it’s an emotional, financial, and psychological upheaval that leaves many individuals overwhelmed and unable to focus on the key issues that need resolution. Mel Murphy explains why a Divorce Coach is a good idea

F

amily solicitors in reland are fre uently asked to shoulder both the legal and emotional burden of their clients, but the reality is that handling the emotional intricacies of a divorce is beyond the scope of a solicitor’s professional training. This is where a divorce coach can play a pivotal role in easing the emotional strain on clients, ultimately leading to better legal outcomes and a more streamlined process.

What is a Divorce Coach?

A divorce coach is a trained professional who helps individuals navigate the emotional and practical challenges that arise during a divorce. Unlike therapists, who focus on healing past trauma, or solicitors, who focus on legal matters, a divorce coach serves as a guide for clients during the divorce process, helping them make clear-headed decisions and manage their emotions e ectively.

A divorce coach provides clients with emotional support, clarity, and practical strategies, helping them remain focused on the long-term implications of their decisions rather than getting caught up in the day-today con icts that so often arise.

Popular topics with clients can include how to communicate with a difficult ex during and after divorce, successful co-parenting techni ues, understanding the impact on children at di erent ages, minimising career impact, money blocks, managing mental health, and having a post-divorce plan. The goal is to ensure clients handle the process 36 the Parchment

with calmness and composure, enabling them to engage productively with their solicitor and avoid delays or emotional outbursts that could derail legal proceedings.

Divorce is not just a legal process it’s an emotional, psychological, and life-changing experience. My role as a divorce coach is to help clients regain clarity and control during this turbulent time, empowering them to make decisions that will positively shape their future.

Benefits of Using a Divorce Coach Both clients and family solicitors can experience significant advantages by engaging the services of a divorce coach. By providing emotional, strategic, and practical support, a divorce coach plays a key role in ensuring that the divorce process is smoother and more efficient for all involved.

1. Emotional Support and Clarity for Clients Divorce can be one of the most emotionally taxing experiences in a person’s life. Clients often feel overwhelmed or paralysed by the enormity of the decisions they face. Divorce coaches provide muchneeded emotional support, helping clients process their feelings and focus on the important issues.

When clients feel emotionally supported and mentally prepared, they’re better e uipped to handle the legal complexities of divorce. A calm, focused client means a smoother, more efficient process for both them and their solicitor.

Autumn 2024 dsba.ie Mel Murphy is an Irish Times bestselling author and owner of Divorce Coaching Ireland

Family Law

2. Improved Decision-Making A divorce coach helps clients avoid impulsive decisions driven by anger, fear, or frustration decisions that can lead to long-term negative conse uences. y guiding clients to slow down and think clearly, a coach ensures better decisions on matters such as financial settlements and parenting arrangements.

As part of my role as a divorce coach, I help explain the six biggest mistakes clients make during divorce so they can avoid them from digging in their heels to giving in just to get out, we calmly unpick thorny issues, and ask important uestions that help them think more logically.

3. Practical Guidance for Everyday Issues Divorce involves a myriad of practical concerns finances, child custody, and future planning. A divorce coach assists clients in addressing these issues while keeping an eye on their long-term goals.

Many of my clients tell me that having a divorce coach allowed them to move forward with dignity and confidence. t’s about helping them envision life beyond the divorce, while ensuring they stay grounded and make decisions that serve their long-term best interests. . o er egal Costs and m ro ed ciency Divorce coaches help reduce the emotional workload for solicitors by preparing clients emotionally and mentally. Clients who work with a coach are often more organised and clear-headed when interacting with their solicitor, making meetings more efficient.

This reduces unnecessary calls and emails, helping to keep legal costs under control. It also enables solicitors to move through cases more uickly, benefitting both the solicitor and the client.

Clients who are better prepared and calmer emotionally make the legal process much smoother.

They’re more focused on the issues that matter, which allows the solicitor to do their job more efficiently.

5. Streamlining Client Preparation Clients who work with a divorce coach have a clearer understanding of their goals and are more organised when it comes to gathering financial documents or setting realistic expectations. This allows solicitors to focus on the legal aspects of the case without being burdened by emotional volatility.

Working closely with family solicitors allows us to create a collaborative approach that addresses not just the legal aspects of divorce, but also the emotional and practical challenges. Together, we help clients navigate the process more e ectively and emerge stronger on the other side.

6. Enhanced Client-Solicitor Relationship Many solicitors find themselves acting as a pseudotherapist for their clients, a role they are not trained for. This can lead to frustration on both sides, as the solicitor may feel ill-e uipped to handle the emotional needs of the client, while the client may feel neglected emotionally. A divorce coach ensures clients receive the emotional support they need without overstepping professional boundaries, enhancing the client-solicitor relationship and improving overall

satisfaction. The divorce coach partners with solicitors to help manage the emotional side of divorce so solicitors can get on with managing the business of divorce.

7. Better Legal Outcomes When clients are emotionally balanced and mentally prepared, they make better decisions and are more willing to engage in productive negotiations. This often leads to faster, more amicable resolutions, which benefits both the client and the solicitor.

By preparing clients for mediation or court appearances, a divorce coach helps them present themselves confidently and calmly, reducing emotionally charged mistakes that could harm their case.

8. Boosting Solicitor Reputation and Client Referrals Solicitors who work with divorce coaches can build a reputation for providing a holistic, client-centred service. By addressing both the legal and emotional needs of their clients, they create a better overall experience, leading to more satisfied clients, positive reviews, and increased referrals.

Family solicitors in Ireland are increasingly recognising the value of partnering with a divorce coach to provide a more comprehensive and e ective service. By guiding clients through the emotional challenges of divorce, I ensure that clients remain focused, organised, and ready to tackle the legal issues at hand. This not only leads to better outcomes for clients but also streamlines the solicitor’s work, making the entire process more efficient and less emotionally draining for all involved.

As the landscape of family law continues to evolve, the role of a divorce coach is becoming an indispensable part of the divorce process o ering both clients and solicitors a path to smoother, more successful outcomes. P Further information can be found at www.divorcecoachingireland.com

A calm, focused client means a smoother, more efficient process for both them and their solicitor

the Parchment 37

Gríana O’Kelly is a Partner and Head of Corporate & Commercial Team at Lavelle Partners LLP

Company Law

Corporate Restructuring Considerations r ana O’Kelly says that corporate restructuring can be hugely beneficial for businesses, with a number of important considerations under rish law

f the proposed transaction is restricted under the Companies Act then the provisions should be reviewed to identify if the summary approval procedure “SAP is available to permit the activity

T

here are many types of corporate restructuring and reorganisation which may be undertaken at various stages of a company’s life cycle.

The corporate restructuring of a company may involve the transfer of shares, the reorganisation of share capital or the transfer of business or assets between companies. This may be achieved by transferring shares or business and assets, carrying out a share for share exchange or share for undertaking exchange or may involve a reduction in a company’s share capital.

Why Consider a Corporate Restructure?

The Companies Act 014 “ 014 Act permits companies to restructure in various forms and there are several reasons why a company may wish to do so: nable companies to separate businesses or assets operating out of the same corporate entity Facilitate the onward sale of a company or business or a refinance of company debt Solidify or capture value for shareholders at a particular point in time Allow for business continuity and succession planning As part of key employee incentive arrangements

Key Considerations There are a number of important factors to be taken into account when considering a company reorganisation or restructure.

Tax Advice: t is essential to examine the tax conse uences of any proposed reorganisation. This will ensure the most efficient and compliant structure is adopted.

Structure: Once the proposed structure is approved, a step plan of the stages of implementation should be prepared.

Company Law: The step plan will identify the key steps that must be undertaken by shareholders and the board to approve the transaction. The proposal will also have to be examined for company law compliance issues and whether the proposed activity is restricted under the Companies Act. Employees: Will the proposed transaction a ect employees and does the Transfer of ndertakings

38 the Parchment

Protection of mployment Regulations “T P apply to the process f T P applies, specialist employment advice in relation to the consultation and notification process should be obtained and the necessary steps followed.

Consent: What consents are re uired to the transaction An examination of contracts and arrangements should be undertaken with change control provisions in contracts identified and consent obtained. ank facilities and loan arrangements will also need to be reviewed and consents obtained.

Operational: Where a business is transferring, operational aspects such as bank accounts and client relationship management will have to be carefully considered to ensure minimal disruption to the business.

Summary Approval Procedure f the proposed transaction is restricted under the Companies Act then the provisions should be reviewed to identify if the summary approval procedure “SAP is available to permit the activity.

Pursuant to the 014 Act, certain transactions can first be approved by way of the SAP. This process allows for the validation of activities which would otherwise be deemed impermissible. Such activities include the provision of financial assistance for ac uiring company shares, a reduction in issued share capital, the variation of share capital upon reorganisation and domestic mergers.

Stamp Duty Relief There are some reliefs available under the Stamp Duty Consolidation Act 1 “SDCA for certain transactions between related entities.

Reliefs under section certain transfers between associated companies and section 0 in respect of certain schemes of reorganisation may be available.

Conclusion usinesses may decide to restructure for many reasons and a corporate restructuring can be greatly beneficial for a company. efore undertaking a company restructure, it is important to take account of the financial implications, employee considerations and the operational impact on the business, while ensuring legal and corporate governance compliance. P

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24/09/2024 13:55

The indomitable Angela McCann Kevin O’Higgins interviews the remarkable Angela McCann about her almost six decades in practice and her unquenchable commitment to the law while she also remembers her late friend and colleague Joanne Sheehan

A

ngela McCann has been in practice for a staggering 57 years. She is one of he most remarkable colleagues of our generation both in terms of her passion for the law and her excellence as a practitioner. I have been privileged to work for several decades in her vicinity.

Angela is testament to all that is worthy and honourable within our profession, and she extols those values every day.

I had the pleasure of spending a couple of hours in her house office chatting to her about her experiences as a lawyer and in particular why she has never lost her love of practice and still has the desire to keep going.

Angela had been a property lawyer for many years in McCann FitzGerald. She expected to retire from the firm when her first born Olivia arrived. However, the firm had other ideas and suggested to her the idea of working from home when that was not a thing! In fact, they suggested that she would

40 the Parchment

I really enjoyed being a solicitor. After Tommy died, and with the children gone, the one thing that got me out of bed was my work and looking after my clients

work the hours in her own time and so she continued to read title, deal with property and trust matters and manage her work schedule as if she was in the office and at a time when suited her best.

This was 0-plus years ago and long before the concept of working from home, due to COVID, had ever been seriously contemplated as a viable option for professionals. It is a mark of the esteem that her firm held her in that they created a work life balance that worked for both.

Angela continues to practise from her period home in Dun Laoghaire, not far from the sea. It is her matrimonial home from which she has raised five children all now pursuing their careers in the UK and Ireland. Her eldest is Olivia, well known in Dublin legal circles as a frequent supporter of the DSBA and attendee at our events.

Olivia lives in Waterford City and works for Respond, the Housing Association. Another lawyer in the family is Rupert who is based in England.

Autumn 2024 dsba.ie Kevin O’Higgins is principal of Kevin O’Higgins Solicitors. He is a former President of both the Law Society and the DSBA. He is a former editor of the Parchment

Interview

the Parchment 41

When I would be on holidays, I would love the break but then when back home I would be delighted to be back at work

With this background in elite Dublin legal society, it may surprise one to hear of Angela’s agricultural origins. A farmer’s daughter from Kells in County Meath, she was home schooled until 12 years old and then boarded in the Holy Child in Killiney.

Her mother’s brother was the renowned Tony Dudley of the then firm of Roche and Dudley. Having completed her BCL in UCD she began an apprenticeship with her uncle Tony. This firm was later to merge with McCann White FitzGerald before becoming the behemoth that McCann FitzGerald has become today. Yet, says Angela, “when I joined there were only 10 or 12 lawyers in the amalgamated rm.

Angela had a great respect and love for the chancery side of practice. She liked nothing better than a complicated title to tackle. n her school days she had itted between 42 the Parchment

wanting to become a nun “ liked their habits to becoming a mathematician at which she excelled. However, the law, being in her DNA, won out. That’s not to say that she sailed through her solicitors’ exams as she struggled with the Irish exam. However, she eventually mastered it after five years and so ualified in 1 .

Her uncle Tony Dudley was a superb property lawyer and was at the forefront of devising legal solutions and legal drafting to the suite of documents to many of the early shopping centres in Dublin, all of which have stood the test of time to this day. When Angela’s daughter Olivia did a stint in one of the magic circle firms in London, she recognised some of the classic FRI clauses in commercial leases which had been authored

by Tony Dudley.

Angela took to her work with gusto,

becoming the go to’ person in the firm for Estate type work, Landlord and Tenant, Trusts and complex ground rent matters.

Meanwhile, a young barrister by the name of Tommy McCann was garnering a name for himself in some of these arcane areas of practice. He had occasion to be in and out of the office taking instructions from Alexis FitzGerald or Tony Dudley. A whirlwind romance then developed with our heroine, and they were married a few months later.

Her late husband Tommy was the son of Jack McCann, one of the founding partners of the firm and “the McCann of McCann FitzGerald. Angela’s aunt had married rskine Childers later President of reland and Angela on occasion would be asked to accompany him to official social functions.

Ultimately, Angela decided to take the plunge and go out on her own in the early 1990s. She had a big following of clients, both institutional and private. They greatly valued her wisdom and expertise.

In addition, Angela had always given time to the Law School in the Law Society where she lectured on a part time basis.

There, she met and got to know our late colleague Joanne Sheehan, who sadly

Autumn 2024 dsba.ie

Interview

Photography: Bryan Meade

has just recently passed away following a short illness. Like Angela, Joanne was a sole practitioner in the vicinity where she practised in Monkstown Village. She epitomised all that is the very best of our profession in how she cared for her clients, exuding great empathy and kindness. Angela and Joanne were to become great friends and colleagues. When Angela’s husband Tommy died in 2008, she was bereft, having lost her anchor. really en oyed being a solicitor.

After Tommy died, and with the children gone, the one thing that got me out of bed was my work and looking after my clients. hen would be on holidays, I would love the break but then when back home I would be delighted to be back at work.

It was then, however, that the wonderful Joanne reached out to her. Joanne was single and had an eclectic social life and wonderful friends. “Joanne would ring me up and ask me to meet up. t might be a walk or an event in the Yacht Club that I would tag along to, and it was always such fun.

Joanne Sheehan died a few weeks ago, working right up to the end. She had asked Angela if she would act as her Practice Executor, to which Angela agreed. Since

Joanne’s passing, Angela has been working closely with the Law Society to ensure an orderly wind down of Joanne’s practice so that clients are looked after in a professional and respectful manner.

For several years up to recently both Angela and Joanne had spearheaded a local collegiate initiative of bringing local colleagues together in a casual format over tea and sandwiches in one of the offices or in Angela’s case in her house .

One of the group would give a talk on a pressing legal issue of importance to the practitioners. Regular participants at these special events have been Betty Masterson, Sharon Mc lligott, erry Lambe, Philip Clarke, Amanda Scales and Frank Murphy. It seems such a simple idea but a great way of connecting with one’s local colleagues and keeping up to date.

Angela was asked to address the recent DSBA Ladies Lunch. She spoke about her career and how she has kept at it for so long.

Younger colleagues were in admiration but very much doubted that they themselves would have the same staying power.

She has been fortunate in that she was to the fore of legal technology from the

beginning and has been able to adapt and manage her practice, keeping up to date. Angela can see how technology has enhanced legal practice and can marvel at the efficiencies which it has delivered.

There are downsides, of course, and she bemoans the urge to send an email rather than pick up the phone as direct human contact can frequently be more productive. She would particularly urge younger colleagues not to ditch the more traditional modes of communication.

Outside of the law, Angela has been a marriage counsellor with Accord for over 50 years. She believes that the skills honed as a counsellor and in one’s interactions with couples can be complimentary to that of a solicitor in the private client area.

I left my meeting with Angela in awe at her indomitable interest in the law and her zest for life generally. I think of the late Joanne Sheehan too, and Angela, and the positive impression they both have made in the delivery of legal services to their community and how they both have upheld the esteemed values of our profession and in Angela’s case for many more years to come. P the Parchment 43

Mareva Injunctions The Supreme Court has set out the principles and criteria for the granting of a Mareva Order. Brian Cunneen gives an overview of this interlocutory application

I

n O’Mahony v. Horgan 1 .R. 411, at 41 , Hamilton C.J. stated as follows: 1. he plainti should make full and frank disclosure of all matters in his knowledge which are material for the udge to know. . he plainti should give particulars of his claims against the defendant stating the grounds of his claims and the amount thereof and fairly stating the points made against it by the defendant.

3. he plainti should give some grounds for believing that the defendant had assets within the urisdiction. he e istence of a bank account is normally su cient.

4. he plainti should give some grounds for believing that there is a risk of the assets being removed or dissipated. . he plainti must give an undertaking in damages in case he fails.

The Court in O’Mahony v. Horgan, also noted regarding test No. 4 that areva in unction will only be granted if there is a combination of two circumstances established by the plainti i.e. i that he has an arguable case that he will succeed in the action and ii the anticipated disposal of a defendant s assets is for the purpose of preventing a plainti from recovering damages and not merely for the purpose of carrying on a business or discharging debts.

Acting for the Moving Party Mareva njunctions are difficult to obtain, and a number of applications have been refused in recent years e.g. c lister v. hurches state gents imited 0 0 HC 4, ahon v. eronga td 0 HC 41 , iernan illing td v. iernan 0 HC .

Additionally, as observed in owley v. rien 00 4 R , the granting of a Mareva Order does not give 44 the Parchment

any security to the moving party, and also does not improve their ranking as a putative creditor.

1. Full Disclosure Mareva injunction applications usually commence with an interim application on an ex parte basis. All facts must be disclosed in the grounding affidavit even if they are unhelpful to the Plainti . Clarke ., in ambrick v. obley 00 1 LRM 10, uoting Tate ccess loors nc. v. oswell 1 0 All R 0 , stated as follows: o rule is better established and few more important than the rule the golden rule that a plainti applying for e parte relief must disclose to the court all matters relevant to the e ercise of the court s discretion whether or not to grant relief before giving the defendant an opportunity to be heard. f that duty is not observed by the plainti the court will discharge the e parte order and may to mark its displeasure refuse the plainti further inter partes relief even though the circumstances would otherwise ustify the grant of such relief .

The moving party must disclose all matters relevant to the exercise of the Court’s discretion itkin v.

Moran 1 1 R and loyds owmaker imited v. ritannia rrow oldings lc 1 1 WLR 1 .

Mulcahy J. in ahon v. eronga td 0 HC 41 held there had been a breach of the “golden rule when the Plainti had incorrectly stated on affidavit the Defendant had no assets within the jurisdiction, apart from the monies the Plainti sought to free e. n amilton v.

0 HC the court granted a Mareva njunction in reliance on averments that the relevant defendant had not engaged with the

Autumn 2024 dsba.ie Brian Cunneen is a partner at Whitney Moore LLP

claim at all, whereas there had been without prejudice correspondence. Hyland J. held that although the existence not the content of those negotiations should have been disclosed to the Court, it had been an innocent omission which did not justify setting aside the Mareva njunction. However, the Court marked that failure by varying the original costs order to disentitle the Plainti to 0 of his costs for that hearing.

2. Particularise the Claim The pleadings must sufficiently particularise the Plainti ’s claim, demonstrate an arguable case and address any potential defence. Applications for Mareva relief are often accompanied with allegations of fraud. The Rules of the Superior Courts Order 1 Rules and Rule re uire specificity as regards allegations of fraud, breach of trust etc. n Keaney v. ullivan 00 HC Finlay eoghegan . approved the following from ullen and Leake 1 th d., 1 at - : eneral allegations however strong...are insu cient to amount to an averment of fraud.

The re uirements for a valid plea of fraud are dealt with in ames lliott onstruction td v. agan 014 HC 4 . n anly v. innerty 1 1 LRM 1 regarding a plea of undue in uence the Court observed that counsel solicitor should have allegations of fact to justify a plea.

3. Irish Assets The moving party must identify specific assets in reland and may be tempted to seek wider orders over general assets of the Defendant. A udge, in e parte applications on an interim basis, in cases involving

Litigation

trading entities, should have regard to the need to pay wages, rent, utilities, and debts arising in the ordinary course of business, and indeed their lawyers. Orders which do not cater for these, or which are too wide e.g. e ectively free ing a client’s legitimate business , are open to challenge.

4. Believing that Assets are at risk of Removal/Dissipation The applicant needs to advance cogent evidence to support a “belief that the assets are in danger of removal dissipation, and that such is not in the ordinary course of business. Clarke . considered in detail “re uisite intention to dispose of assets in ughes v. itachi oki maging olutions urope 00 HC .

Regarding the belief of the risk of dissipation, Keane . observed in onice roperty orp and others v. akes 01 HC 4 1: n considering the re uirement that a plainti establish a risk of the defendant s assets being dissipated or moved beyond the reach of the ourt to defeat the plainti s claim . O’Sullivan . approved in onice observed in ennett nterprises nc. v. ipton 1 .R. 1 that: direct evidence of an intention to evade will rarely be available at the interlocutory stage. consider it is legitimate for me to consider all the circumstances in relation to the case.

Kearns J. in erospares td v. hompson rs 1 HC uoted the passage from ee, Mareva njunctions and Anton Piller Relief 4th d., p. 1 : f there is a good arguable case in support of an allegation that the efendant has acted fraudulently or dishonestly or has acted unconscionably then it is unnecessary for there to be any further speci c evidence

All facts must be disclosed in the grounding affidavit even if they are unhelpful to the Plainti

the Parchment 45

Litigation

on risk of dissipation for the ourt to be entitled to take the view that there is a su cient risk to ustify granting areva relief. erospares was approved in onice and by Twomey J. in c lister, albeit that the Mareva Order was not granted in that case. n ahon v. eronga td 0 HC 41 Mulcahy . held that unconscionable behaviour was not the same as the test for a Mareva njunction, was not satisfied the Plainti had established a risk of dissipation of assets and refused the application.

Roberts . in iernan illing td v. iernan 0 HC refused a Mareva njunction because the Plainti had not established a risk of dissipation of assets, albeit that the Defendant gave an undertaking in relation to the relevant monies.

Mareva njunctions, when furnished to the respondent’s bank, can often have 5. Undertaking as to Damages the e ect that The re uired undertaking as to damages only applies to the party directly a ected by the Mareva Order. all accounts, However, Mareva njunctions, when furnished to the including respondent’s bank, can often have the e ect that all accounts, including personal accounts if there are cross personal guarantees etc. , and accounts of corporate entities not accounts if listed in the Order but which the bank internally treats there are cross as connected , are fro en.

This can have implications as regards the extent of guarantees the undertaking. This issue was considered by arniville J. in eva harmaceutical ndustries td v. ylan eo 01 etc. , and HC 4, in which he held that in an application for accounts of a patent injunction it is appropriate for the Court to consider the potential damage to entities related to the corporate Defendant from the granting of an injunction, even if entities not they have not been sued by the Plainti . listed in the Acting for the Respondent – Attack might Order but be the best form of Defence f a Mareva njunction is granted on an interim basis, it which the will usually cause immediate and significant difficulties bank internally to a Defendant. ven with the level of priority the full interlocutory hearing will be a orded in the Chancery treats as List, delays will arise. Accordingly, provided the dispute falls within the criteria for admission, consideration connected , should be given to an application for admission to the are fro en Commercial List of the High Court, which tends to have more capacity to allocate an early date for hearing of the interlocutory application.

n addition to the tests and criteria indicated above, regard must be had to the usual matters for consideration in injunctive relief, e.g. the scope of the order, standing of the moving party and particularly delay. Regard should also be had to the basis on which the order was granted e parte or is being sought at interlocutory stage in particular, concerning the following matters:

1. “Warts and all” Was full disclosure made by the Plainti during the interim e parte application? The Defendant’s solicitor should apply for a transcript of the Digital Audio Recording for the e parte hearing. Submissions should be compared to the pleadings and affidavits, to see whether any prejudicial observations or exaggerations were made during the e parte application.

2. Has the Claim been Sufficiently Particularised?

Has the applicant sufficiently particularised and grounded its claim with admissible evidence s it arguable and capable of succeeding on a factual and legal basis Are allegations of fraud etc. itemised and supported?

3. Assets in the Jurisdiction A Respondent which can legitimately demonstrate that there are no rish assets e.g. in group structure situation amenable to a Mareva Order can object to the Order being granted. Additionally, the corporate respondent should be mindful in Mareva matters where cash ow is curtailed not to fraudulently prefer creditors.

4. Belief of Dissipation of Assets A Respondent should challenge the basis for the belief on the part of the Plainti and particularly unsupported bald assertions of fraud or dishonesty.

5. Undertaking as to Damages The granting of a Mareva njunction often has the e ect that suppliers suspend credit terms insist on advance payment. t is therefore important that the Respondent note any suppliers and banks etc. who insist on di erent terms and particularly any third parties indirectly a ected, as regards the undertaking as to damages.

6. Costs Consequences f the Court refuses to grant the interlocutory Mareva Order, a Plainti is likely to face an adverse costs order. f the reasons for refusal were significant, there is always the risk the Court may mark its disapproval by an award of costs against the moving party on potentially solicitor and own client basis. High Court Practice Direction HC 1 also permits the making of an interim order for the payment.

Conclusion The Mareva njunction jurisdiction provides a valuable weapon in the armoury of litigants to prevent Defendants from dissipating assets, with the intention of rendering them insolvent and judgment-proof.

However, practitioners should note the re uirements of a Mareva njunction and be careful to ensure strict compliance with those rules. P 46 the Parchment

WE TRACE MISSING HEIRS WILLS DOCUMENTS ASSETS

WORLDWIDE Members of the International Association of Professional Probate Researchers www.iappr.org

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

contact@findersinternational.ie www.findersinternational.ie 1800 210 210 12D Butlers Court, Sir John Rogerson’s Quay, Dublin , D02 EC98

Keith Walsh is a Dublin solicitor practising primarily in the area of family law and family disputes. He is a former President of the DSBA and former editor of The Parchment

Family Law

Huge Increase in Family Law District Court cases There has been a very large increase in family law District Court cases which puts more strain on the already overburdened Court which is the workhorse of the Court system. Keith Walsh takes a closer look

F

amily law cases in the District Court rose by almost twice as much as the general increase in cases in the District Court in 2023 based on figures released recently from the Courts Service of Ireland.

Recently released court service statistics show that in 2023 there was a huge increase from 2022 in the number of new applications for domestic violence orders . and 1 .4 for child care or child protection orders in the District Family Court.

Child care cases take the most time and an increase of 1 .4 has significant implications for the number of udges and court sta needed to resource the child care family courts. A movement of additional judges to these cases, which must be dealt with urgently due to the child welfare issues arising, means less judges for other family law and civil law matters.

The continuing increase in domestic violence cases is also of concern as the post Covid increase has yet to atten out with numbers continuing to increase.

Domestic violence applications continue to be the largest single area of court applications in family law cases in the District Court. The new Civil Restraint Orders or Anti Stalking Civil Orders are also likely to put further pressure on the District Court Civil and Family Law system.

Since 2020, applications for family law orders have increased by 0 which is putting severe strain on the District Court.

TYPE Domestic Violence

2023 ,

.

Childcare

1 , 04 1 .4

Maintenance

, 0

2022

2021

2020

2019

on

23,536

,

, 0

0, 01

on

14, 14

14,0

1 ,0 1

11,4

5,862

,4 1

5,055

, 4

Foreign Maintenance

1 4

1

Guardianship, custody, access

10, 01

10,

TOTAL DISTRICT COURT FAMILY APPLICATIONS

, .

2022

, 1 increase on

0 increase on 0 0 figures 48 the Parchment

-

-

-

10,01

,4

,101

4 ,

1 , , 4

The increase in family law cases contrasts with a much lower increase of general civil cases overall in the District Court from 1 , in 0 to 1 ,000 in 0 which is an increase of , 11 or 4. .

Planning permission was finally granted this year for the Dublin Family Courts Complex in Hammond Lane; however, the building is unlikely to be operational until 2028 or more likely later which means families, lawyers, witnesses, experts, judges and courts sta are stuck with the current inadequate facilities in Dublin for domestic violence, child care, divorce, access and custody and other family law cases in Dolphin House, Chancery St. the old 1 th century ridewell’ courts and Phoenix House.

4 new judges were appointed in 0 based on the recommendations of the Judicial Planning Working Group. 8 to the District Court, 8 to the Circuit Court, 6 to the High Court and 2 to the Court of Appeal.

Another 20 extra judges may be appointed subject to a satisfactory review of the impact of the first 4 judges on court business. There are concerns that an election before the end of the year may disturb these appointments.

However, even if these 20 new judges were appointed there would still be huge pressure on the resources of the District Court in family law and other matters due to a combination of the increased family law cases each year, the urgency required for the fastest growing categories namely child care and domestic violence cases as well as the increased time required to hear these cases, the new civil restraint orders which can be heard in the family courts as well as the inadequate and frankly unfit premises that many family courts operate in. Another problem waiting in the wings is the transfer of many divorce, judicial separation, cohabitation and maintenance cases from the Circuit Family Court to the District Family Court which will make an already overcrowded system unworkable. Apart from appointing more judges and increasing the resources of the District Court, another way of dealing with significant increases in family law cases in the District Court is to leave divorce, judicial separation and cohabitation cases in the Circuit Family Courts which already deal with them but to streamline the Circuit Court Rules leading to greater efficiencies, less costs for clients and the re uirement for less resources than a similar system in the District Court. P

Autumn 2024 dsba.ie Matthew Kenny is a partner in O’Sullivan Kenny Solicitors. He is the current President of the DSBA

Criminal Law

Character Evidence in Sex Offence Trials Matthew Kenny assesses this new departure arising from the introduction of the Criminal Law Sexual O ences and Human Trafficking Act 0 4 which was commenced in part on the 1st of August 0 4

S

ections 1 and 14 of the Act legislate for the admissibility of character evidence on behalf of the convicted person at their sentence hearing. The new law only applies to convictions after the section commences and applies to character evidence not expert reports such as psychological or other medical reports.

Section 14 of the Act states: . ub ect to subsection where a person is convicted of a speci ed o ence and he or she intends to adduce evidence of his or her character for the purpose of the determination by the court of the sentence to be imposed on him or her for the speci ed o ence such evidence shall a where the evidence is to be given orally before the court be given on oath or b otherwise be given by a davit. ubsection shall apply only in respect of a person who is convicted of a speci ed o ence after the coming into operation of this hapter .

A sentence hearing ought to allow for the sentencing Court to arrive at a fair and proportionate sentence that takes into consideration the aggravating and mitigating facts of the crime committed and the aggravating and mitigating facts that relate to the person to be sentenced. Within that context the Court must consider the notional sentence for the crime committed, then identify what reduction if any from this notional headline sentence the facts of the particular crime deserve.

Then the Court ought to consider the aggravating and mitigating facts which relate to the o ender and the final sentence imposed ought to take in to account these facts that are unique and personal to the o ender. t is now the case that for specified sexual o ences if the Court is asked to take into account the fact that the o ender o ers evidence of their character that such evidence ought to be in person or on affidavit by the referee. This is a new departure and now re uires a solicitor for the o ender to prepare any character evidence well in advance of the sentence hearing.

It had been the custom that character references would be shared with the prosecution solicitor and barrister in advance or on the day of the hearing without the need to formally prove the reference or call the referee to give their evidence. As a result of criticisms of this practice and the reliability of some references this practice came into sharp focus in the recent past. On foot of such focus, the Minister for Justice proposed this legislation, and it is now the law.

Some practitioners suggest that this new section has the capacity to cause unnecessary chaos. It has generally been accepted by solicitors and barristers on all sides that our Judges are already more than able to give due weight to character references based on their asserted provenance.

It is worth noting that there is no amendment to the legal aid rates for sentence hearings. Therefore, any additional work undertaken by a solicitor on legal aid to include the consultation with the referee and drafting of their affidavit and arrangements for it to be sworn are done without any payment to the solicitor. It is perhaps too cumbersome a process and may be far more practical for the referee to be asked to share their reference and then attend at the sentence hearing to o er their evidence.

It is worth noting that the new law only applies to scheduled sexual o ences. These o ences are those contained within the schedule to the Sex O enders Act 2001. It is noteworthy that our law makers still trust our Judges to give the appropriate weight to unsworn references in non-sexual crimes regardless of the moral outrage other serious crimes generate within our society. It is also noteworthy that whilst the victims of crime may give evidence as to the e ect the crime has had on them, their barrister or solicitor may also still make submissions on their behalf and their victim impact report if one is o ered need not be on oath or within an affidavit.

Whilst it is understandable that our law makers wish to ensure that persons convicted of sexual crimes are punished it is perhaps noteworthy that they do not trust our Judges to apply the correct legal tests without interference from the legislator. P

Whilst it is understandable that our law makers wish to ensure that persons convicted of sexual crimes are punished it is perhaps noteworthy that they do not trust our Judges to apply the correct legal tests without interference from the legislator

the Parchment 49

We are Family!

Owen urke takes a close look at the rights of cohabitants and the implications of the underpinning legislation, particularly in relation to succession, property transfers and possible claims against estates

W

ith regard to the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 010, a greater awareness of the rights and conse uences of cohabitants should be encouraged and future caselaw is inevitable. As advisers we need to be aware of the implications of the Act for our clients in advising them on succession, property transfers and possible claims against estates.

Introduction We all encounter clients who are in cohabiting relationships, whether that is the young couple buying their first house or the older couple where one or both have been separated or divorced coming in to update their Wills. ’m sure many of you have dealt with clients who refer to their partners as my common law husband wife. There is of course no such concept in rish legislation.

The 0 Census showed that there were 1 , cohabiting couples or putting it another way , 1 individuals in reland. There were , cohabiting couples with children according to the same Census.

That’s a lot of people that potentially need our advice on the rights and obligations that stem from their living arrangements.

Cohabitants We are familiar with the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 010 and the provisions of Part 1 relating to Cohabitants.

Section 1 as amended by the Family Law Act 01 provides our definition of cohabitant as follows: 50 the Parchment

1 For the purposes of this Part, a cohabitant is one of two adults whether of the same or the opposite se who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other. n determining whether or not two adults are cohabitants, the court shall take into account all the circumstances of the relationship and in particular shall have regard to the following: a the duration of the relationship b the basis on which the couple live together c the degree of nancial dependence of either adult on the other and any agreements in respect of their nances d the degree and nature of any nancial arrangements between the adults including any joint purchase of an estate or interest in land or joint acquisition of personal property e whether there are one or more dependent children f whether one of the adults cares for and supports the children of the other and g the degree to which the adults present themselves to others as a couple.

For the avoidance of doubt a relationship does not cease to be an intimate relationship for the purpose of this section merely because it is no longer se ual in nature. or the purposes of this art a uali ed cohabitant means an adult who was in a relationship of cohabitation with another adult and who immediately before the time that that relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period

Autumn 2024 dsba.ie Owen Burke is a senior associate solicitor at Hayes Solicitors LLP

a of two years or more in the case where they are the parents of one or more dependent children and b of ve years or more in any other case.

A person can be a cohabitant without having to clock up any significant amount of time living together in an intimate and committed relationship although a factor in a court’s determination will be the duration of the relationship .

However, in order to be a ualified cohabitant a person must have met the two years or five years re uirements, as the case may be. uali ed cohabitants f a person meets the threshold of a ualified cohabitant then this entitles them under section 1 to apply to the court for an order for redress in the form of a property adjustment order, a maintenance order and a pension adjustment order.

Will Drafting The importance of taking full and detailed instructions from your client cannot be overstated. t is vital to probe our client in relation to their actual marital and relationship status and their living arrangements and keep detailed attendance notes. ear in mind the position of the executor post-death who may be faced with a claim against the estate from a cohabitant it may be difficult for them to determine the position if they are not familiar with the testator and their circumstances. Of course, the position of the professional executor might be even more difficult.

Many people are separated and divorced and rights of succession are generally dealt with in the separation

Family Law/Probate

agreement or divorce order so it is important to check those documents carefully. nlike a spouse, a cohabitant has no automatic right to a share of the estate, regardless of the length of time the cohabitation has lasted. f a client wants to provide for their cohabitant a Will should be executed to provide for them. t is also possible to make provision by putting property into joint names under a joint tenancy and detailed legal and tax advice should be taken in such circumstances.

Post Death Having the status of ualified cohabitant allows the person to make an application for provision out of the estate of the deceased under section 1 4.

Section 1 4 provides: 1 uali ed cohabitant may after the death of his or her cohabitant but not more than months after representation is rst granted under the uccession ct in respect of that cohabitant s estate apply for an order under this section for provision out of the net estate.

The 0 Census showed that there were 1 , cohabiting couples or putting it another way , 1 individuals in reland

dministering the estate A claim by a ualified cohabitant can be made against a testate or an intestate estate. The personal representative should therefore consider the following: Was the deceased cohabiting at the date of their death Was the deceased cohabiting at any point within two years prior to death the Parchment 51

mportantly Section A, CATCA 00 provides that where a court grants an order following an application for redress by a ualified cohabitant anything received is exempt from CAT

Was the cohabitant a “ ualified cohabitant f the cohabitation ended before death, the applicant must establish financial dependency on the deceased. f the cohabitation ended years or more before the date of death, no claim can be made unless the applicant was in receipt of periodical payments or had applied for an order under s.1 4 property adjustment order , s.1 maintenance or s.1 pension adjustment order not later than two years after the relationship had ended.

An applicant must give notice of an application to the personal representative, any spouse or civil partner and any other person the court may direct. n the absence of notification, the personal representative is free to distribute the estate.

The personal representative is not re uired to notify the cohabitant of their rights. This is unlike a spouse where an executor has to notify the surviving spouse of their right of election. mportantly, the legal right share of the surviving spouse is protected and sacrosanct. n reaching a decision the court shall have regard to all the circumstances of the case and the matters in section 1 4 4 include: Property adjustment, compensatory maintenance, attachment of earnings and pension adjustment orders Any devise or be uest made by the deceased in favour of the applicant The interests of beneficiaries The factors set out in section 1 which include: the financial circumstances, needs and obligations of each ualified cohabitant, the rights and entitlements of any spouse, the rights and entitlements of any dependent child, the duration of the parties’ relationship, the basis on which the parties entered into the relationship and the degree of commitment of the parties to one another, the conduct of each of the cohabitants if the conduct is such that, in the opinion of the court, it would be unjust to disregard it.

Cohabitants’ Agreements nder section 0 it is possible for cohabitants to enter into an agreement to provide for financial matters during the relationship or when the relationship ends, whether through death or otherwise. t can deal with day to day financial arrangements as well as the division of property if the relationship ends.

A cohabitants’ agreement is valid only if the cohabitants have each received independent legal advice beforehand or have received legal advice together and waived in writing the right to independent legal advice. t must be in writing and signed by both cohabitants and the general law of contract must be complied with.

A cohabitants’ agreement may contain blocking provisions providing that neither cohabitant may apply for orders for provision under section 1 provision during lifetime or section 1 4 provision from an estate . n a way this is similar to a separation agreement or a renunciation of a spouse’s legal right share that we would be familiar with.

52 the Parchment

A court can ignore an agreement if its enforceability would cause serious injustice.

While certainly not the most romantic of things to suggest to clients, it is something that we should bring to their attention and encourage them to at least give consideration to. Obviously it is so much easier to negotiate for future events when the parties are amicable rather than when a relationship breaks down and there is significant strain.

Taxation Issues A spouse civil partner can transfer a limitless value to their spouse civil partner and not be liable for Capital ains Tax. The receiving spouse civil partner is exempt from stamp duty section , Stamp Duty Consolidation Act 1 and Capital Ac uisitions Tax sections 0 and 1, CATCA 00 . Similar exemptions arise on transfers occurring as part of the dissolution of marriages civil partnerships which we will be familiar with section , SDCA 1 and section , CATCA 00 .

For C T purposes, there are rules relating to what the ac uiring spouse’s civil partner’s base cost is.

As cohabitants are not married to each other, they do not obtain any of these exemptions. Regardless of the length of the cohabitation they are strangers for tax purposes.

For CAT purposes, this means that a cohabitant can only receive the roup C tax free amount currently 1 , 0 during their lifetime from their cohabitant they can of course receive the annual small gift amount of ,000 in addition to this . Obviously, if they have received any prior gifts or inheritances from “strangers the roup C threshold amount could easily be depleted or significantly reduced. Anything they receive in excess of the tax-free threshold amount is taxed at . mportantly Section A, CATCA 00 provides that where a court grants an order following an application for redress by a ualified cohabitant anything received is exempt from CAT. Similar provisions exist for stamp duty under section A, SDCA 1 and C T under section 10 1R, Taxes Consolidation Act 1 where the court grants a property adjustment order under section 1 4 of the 010 Act. These are unusual provisions in that they force a party to litigate and obtain an order to get the tax exemptions.

John O’Meara and Others v. The Minister for Social Protection, Ireland and the Attorney General [2024] IESC 1 Background ohn O’Meara and Michelle atey were partners for 0 years prior to her death in anuary 0 1. They had three minor children who were also parties to the court case.

Following the death of Michelle atey, ohn O’Meara applied for the widower’s contributory pension WCP under Chapter 1 of the Social Welfare Act 00 “the 00 Act . The WCP is a weekly payment that is made to the husband, wife, or civil partner of a deceased person. The provisions of the 00 Act state that the person applying for WCP, or their deceased spouse civil partner, must have enough social insurance contributions to ualify for the payment. The payment

Autumn 2024 dsba.ie

Family Law/Probate

may also be increased if the applicant has dependent children. The increased payment can be paid up until the child is 1 or it can continue until the child is if they are in full-time education.

The provisions of the 00 Act meant that only those who have been married or who have entered civil partnerships can receive the WCP. As a result, Mr O’Meara’s application was rejected by the Social Welfare Deciding Officer in May 0 1.

Following this, Mr O’Meara and his three children challenged the constitutionality of the provision of the 00 Act. Their claim failed in the High Court, but they were granted leave for a direct appeal to the Supreme Court which in itself would not be as common now as we have the Court of Appeal .

Findings The Supreme Court found that the relevant provisions of the 00 Act were invalid, with Chief ustice O’Donnell stating that the provisions were “arbitrary and capricious .

The Supreme Court found that the 00 Act provides for a contributory social welfare benefit that arises from a loss, which gives rise to a recognisable need for support. The Supreme Court concluded that this loss is not di erent because of the marital status of the survivor.

Furthermore, the provisions of the 00 Act allow for an increase in WCP if there are dependent children. The increased payment for dependent children recognises that the survivor may not just be a spouse or civil partner but also a parent, who will now have additional expenses to maintain the dependent children.

The Supreme Court confirmed that the Constitution recognises the rights of all children regardless of the marital status of their parents. t further concluded that parents owe the same duties and obligations to their children regardless of their marital status.

The Supreme Court also found that the distinction made under the 00 Act is not based on the present marital status of the applicant. nder the 00 Act, the definition of spouse and civil partner includes a divorced spouse and separated civil partner. The 00 Act also recognises cohabitation but only negatively. t removes the right to WCP if the person remarries or if they become a cohabitant. The Supreme Court determined that the 00 Act recognised that an unmarried partner provides the same supports to their partner and children as a married partner does, but only for the purpose of taking away WCP. As such, the Supreme Court concluded that the 00 Act which provided for the payment of WCP to a surviving spouse with dependent children, but refusing the same to a survivor of an unmarried couple with dependent children was not compatible with the e uality guarantee under Article 40 of the Constitution.

Significantly the Supreme Court re-affirmed the longstanding position that the constitutional family protected by Article 41 of the Constitution was the family based on marriage. As such, the O’Meara case was not decided under the family article but the e uality article.

Chief ustice O’Donnell also noted that under the 00 Act, Mr O’Meara had made the same PRS contributions as a widower obtaining WCP and had su ered the same loss but would not be able to receive the same benefit. The Supreme Court found that rejecting his application for WCP would also negatively a ect his children. t is important to note that the Supreme Court relied on the fact that Mr O’Meara is a bereaved parent with dependent children, so this decision does not establish whether the same entitlements would apply to a survivor of an unmarried couple with no dependent children. mplications The decision of the Supreme Court means that unmarried bereaved partners with dependent children will now be eligible for WCP. t is also expected that the overnment will introduce legislation to provide for payment of WCP to these bereaved unmarried parents.

This decision demonstrates that non-marital families can rely on the e uality guarantee under Article 40 to uphold their rights. While it is limited to particular factual circumstances, it is likely to be a springboard for further extensions of rights in the future.

Conclusion Had the recent referendum passed and introduced the concept of “durable relationships we could be in a wholly di erent situation. The current position is that the only family members with statutory rights are spouses and civil partners , children and cohabitants.

A greater awareness of the rights and conse uences of cohabitants should be encouraged and future litigation and caselaw is inevitable. As advisers we need to be aware of the implications of the 010 Act for our clients in advising them in relation to succession, property transfers and possible claims against estates. P the Parchment 53

Notable Nervous Shock Case The High Court recently gave judgment in a claim for nervous shock arising from the death of the plainti ’s husband. Martha Wilson and Katie Nugent review a considered decision in the case of Germaine v. Day 0 4 HC 4 0, in which the Court examined the law applicable to nervous shock claims arising from alleged medical negligence. The Court while expressing great sympathy for the plainti on her loss was unable to find in her favour

T

he defendant hospital failed to diagnose the plainti ’s husband with cancer in October 01 resulting in a missed diagnosis and he sadly passed away on 14 February 01 .

The plainti pleaded that between October 01 and February 01 she witnessed her husband’s deterioration which she said caused her to su er a recognisable psychiatric illness. While the defendant admitted breach of duty in relation to the missed diagnosis, it was established that had the cancer been diagnosed in October 01 it was already incurable at that time and an earlier diagnosis would not have led to any change in treatment or prognosis.

Test for Nervous Shock Ms. ustice gan reaffirmed that Kelly v. Hennessy 1 R is the leading authority on nervous shock claims in this jurisdiction and reiterated the criteria a plainti must satisfy in order to succeed in a claim for nervous shock: 1. A plainti must establish that they su ered a recognisable psychiatric illness . A plainti must establish that their recognisable psychiatric illness was shock-induced . A plainti must prove that the nervous shock was caused by the defendant’s act or omission 4. The nervous shock sustained by a plainti must be by reason of actual or apprehended physical injury to the plainti or a person other than the plainti and 54 the Parchment

. A plainti must show that the defendant owed them a duty of care not to cause them a reasonably foreseeable injury in the form of nervous shock.

The Intersection between Nervous Shock and Medical Negligence n its ruling, the High Court acknowledged that Kelly arose out of a road traffic accident but observed that the test had subse uently been relied upon in nervous shock claims arising from the death of a loved one as a result of medical negligence, referencing Courtney v.

Our Lady’s Hospital 011 HC and Barry v. HSE 01 HC 1 as examples. However, Ms. ustice gan also noted the contrasting decision in Morrissey v. HSE 01 HC , in which the Court held that a relative of a CervicalCheck claimant could not recover compensation for nervous shock because the fifth criterion in Kelly was not satisfied, and a similar judgment in Mitchell v. HSE 0 HC 4.

High Court Decision The High Court held that the plainti ’s case failed for the following reasons: 1. he plainti could not establish that her recognisable psychiatric illness was shock-induced. n assessing whether the plainti ’s psychiatric injury was shock-induced, the Court observed that the plainti witnessed her deceased husband’s

Autumn 2024 dsba.ie Martha Wilson is a partner and Katie Nugent is an associate at Hayes Solicitors LLP. The support of Kevin Kelly, Legal Executive at Hayes Solicitors LLP, is acknowledged

deterioration over a period of several months and, as such, her injury was not shock-induced within the meaning of the law. n analysing what constitutes a shock-induced injury, the Court cited the decision in Harford v. ESB 0 R 41, stating that there was no “sudden calamitous or horrifying event in the nature of an accident . As such the plainti had failed to satisfy the second of the Kelly v. Hennessy criteria. . he plainti could not prove that the nervous shock was caused by the defendant s admitted breach of duty.

The plainti maintained that the sudden shocking event that triggered her recognisable psychiatric illness was the deceased’s deterioration in the period following the missed diagnosis in October 01 , and particularly on December 01 . The Court concluded that the defendant’s negligence did not, in this particular case, cause the deceased’s deterioration and on the contrary, this deterioration and the plainti ’s exposure to it would have occurred in any event. t was established on the evidence that the failure to diagnose the deceased’s cancer would not have had led to a di erent outcome since the cancer was already incurable in October 01 . Additionally, the Court did not accept the plainti ’s argument that her injury was caused by not learning of her deceased husband’s diagnosis at an earlier stage so as to allow her prepare for witnessing the deterioration

Litigation

in a prepared manner. Ms. ustice gan therefore concluded the plainti did not satisfy the third of the Kelly v. Hennessy criteria. .

he defendant did not owe a duty of care to the plainti in the circumstances of this case.

Although the Court established that the plainti had not satisfied the second and third of the five criteria necessary to succeed in her action, in case she was wrong in that conclusion Ms. ustice gan went on to consider the fifth criteria did the defendant hospital owe the plainti a duty of care not to cause a reasonably foreseeable injury in the form of nervous shock?

The Court held that the test for whether a duty of care has been established as set out in Glencar Explorations Plc v. Mayo County Council No. 2 00 1 R 4 is to be applied when considering whether a duty of care is owed in a nervous shock case. The necessary elements to establish a duty of care, according to Glencar, are reasonable foreseeability, proximity of relationship, the absence of countervailing public policy considerations and the fairness, justice and reasonableness of imposing a duty of care.

The Court identified that the duty of care the plainti alleged she was owed by the defendant hospital was in e ect “to shield her from the psychological impact of witnessing her husband’s

A plainti must show that the defendant owed them a duty of care not to cause them a reasonably foreseeable injury in the form of nervous shock

the Parchment 55

deterioration in an unprepared manner . Ms. ustice gan concluded that this was not a duty it would be reasonable to impose. The risk in uestion was not one that a doctor ought to have reasonably contemplated when caring for patients, and to impose this duty would be over and above the duty that the doctor owed to their patient.

Open Questions?

The High Court was careful to distinguish between issues upon which it was necessary for it to determine in order to dispose of the action before it, and other general but important issues which arose in the case. n respect of the latter, the Court explained “there is merit in setting the issues out clearly to identify the likely contours of future debate.

Ms. ustice gan specifically stated that the Court should only pronounce on the meaning of proximity in nervous shock claims. and on whether healthcare providers owe a duty of care to the relatives of their patients, in an appropriate case in which these issues s uarely arise. n concluding that the duty contended for here was not a reasonable one to impose on the defendant hospital, it was not necessary for the Court to determine the degree of reasonable foreseeability and proximity that a plainti will need to establish in order to succeed in their action. What is clear from the judgment, and the parties’ submissions, is that the notion of proximity is a particularly thorny issue in the context of claims for nervous shock brought by relatives arising from alleged medical negligence.

The Court re ected on whether proximity in 56 the Parchment

such cases should be assessed by reference to broader negligence principles i.e. the re uirement to establish a close proximate relationship between doctor and injured relative, an assumption of responsibility by the doctor for the health and wellbeing of the relative or whether proximity has some special meaning in this context. y way of example, the Court suggested a close proximate relationship between the patient and relative, and between the relative and the sudden shocking event caused by the medical negligence.

The Court then went on to apply both potential approaches to proximity.

The plainti had contended that the following factors illustrated that the doctor had assumed responsibility for her health and welfare, and as such she had the necessary degree of proximity: 1 She attended all medical consultations with the deceased She attended the index consultation when the breach occurred and was assured that the deceased was in good health and The consultant was so concerned about the plainti ’s welfare that he sent her an open disclosure letter setting out the error in the care and o ering condolences and apologies.

However, the Court ultimately felt that these factors were insufficient to determine that the defendant had assumed responsibility for the health or well-being of the plainti if that was the test for proximity .

The Court then looked at the case through the prism of specialised proximity considerations, alluding specifically to the fact the plainti was the deceased’s wife, the fact that she witnessed the collapse of

Autumn 2024 dsba.ie

Litigation

his health on December 01 and the fact she developed a psychiatric illness as a result. Ms. ustice gan commented that her ultimate finding that a duty of care had not been established would not be altered by the application of such considerations because proximity alone does not give rise to a duty of care.

She therefore seems to indicate that if proximity has a specialised meaning in the context of nervous shock claims, this plainti was sufficiently proximate.

As noted above the Court was not re uired to determine whether proximity has a special meaning in the context of nervous shock claims. in order to reach its decision in Germaine, but as part of “laying out the contours of future debate Ms. ustice gan suggested that perhaps the fifth criterion of Kelly envisages a con uence of proximities relational, spatial and temporal, and the greater the con uence the more likely it is that a duty of care will be found to exist.

Regarding the general uestion of whether a healthcare provider owes a duty of care to the relatives of their patients, the Court emphasised that this will always re uire a context driven analysis. The High Court noted that rish law is unclear as to whether medical practitioners owe a duty of care to patients’ relatives. The K decision of Paul v Wolverhampton 0 WCA Civ 1 had been submitted to the Court by the defendant. This is a decision which ruled that relatives of patients who su er from medical negligence do not have a cause of action in nervous shock. Ms. ustice gan summarised the e ect of the Paul decision as 1 excluding medical crises from the nervous shock paradigm and holding that due to a lack of proximity doctors do not generally owe relatives a duty of care. The High Court indicated that it would not comment on this uestion in general terms in Germaine.

While the Court did not make any general findings, the High Court raised a number of important considerations as to why it may not be just and reasonable to impose a general duty of care on doctors towards relatives of patients in the future: “Doctors must be taken to know that their patients’ relatives might foreseeably be negatively impacted by witnessing the result of clinical negligence on the doctor’s part. f these factors alone established not only proximity but also a duty of care, the number of potential plainti s in the medical negligence action could be multiplied by the number of potentially impacted family members.

“A general re uirement that a doctor consider the health of parties other than the patient is likely to give rise to unexpected conse uences and to wide and uncontrolled liability.

Doctors are not obliged to shield relatives of patients against the risk of psychiatric illness in witnessing the deterioration of a loved one in an unprepared manner, observing that this “is not a risk which doctors ought to have in their reasonable contemplation when directing their mind to the medical care of their patients.

practitioners and the judiciary alike when assessing the merits of claims for nervous shock arising from medical negligence. Stated another way, it clarifies the hurdles that a plainti must overcome in order to succeed: 1. They must establish that they su ered a recognisable psychiatric illness. . They must establish that their recognisable psychiatric illness was shock-induced i.e. brought on by a sudden calamitous or horrifying event in the nature of an accident by reference to objective, rather than subjective standards . . They must establish that the nervous shock was caused by the defendant’s act or omission. ven if there is breach of duty on the part of a healthcare provider, unless the breach caused the medical crisis which in turn caused the plainti ’s injury, the plainti cannot succeed in a claim of nervous shock.

4. The nervous shock sustained by a plainti must be by reason of actual or apprehended physical injury to the plainti or a person other than the plainti . . They must show that the defendant owed them a duty of care not to cause them a reasonably foreseeable injury in the form of nervous shock. n assessing this, the Glencar test will apply: a. Was the injury to the plainti reasonably foreseeable b. s there sufficient proximity of relationship c. Are there any countervailing public policy considerations to the imposition of the duty? d. s it fair, just and reasonable to impose the duty of care?

The High Court noted that rish law is unclear as to whether medical practitioners owe a duty of care to patients’ relatives

n this case, the plainti failed to establish that the defendant hospital owed her a duty of care, but the High Court has not closed the door to such a duty of care being established in another case and Ms. ustice gan has helpfully outlined the considerations that will apply when the time comes. P

Conclusion The primary impact of Germaine is the emphatic re-statement of the Kelly v. Hennessy principles, as well as the provision of a road map to be followed by the Parchment 57

In Practice

INJURIES BOARD WARNING The injuries board will now only issue an authorisation against the persons or bodies named in the portal application or Form A. Even where there’s an obvious typographical error, they will not facilitate the applicant. They will amend if the applicant can provide written consent from the respondent or their insurers

to the amendment of the authorisation.

Alternatively, they will treat any request to amend the title as a new application and acknowledge it as complete for the purposes of section 50 for the later date. Bearing in mind the time each application spends in the injuries board the statute will have long expired by that

stage. There is a Supreme Court case in relation to what are commonly known as typographical errors but it is worth bearing the above in mind. Check your application when it is made for the correct spelling.

The requirements for both of the above must include, where you are a sole practitioner or compliance and/or money laundering compliance partner, the inclusion in these hours of 1-hour solicitors accounts and 1-hour anti money laundering compliance.

The detailed definition of the new headings are as follows: The term Professional Development and Solicitor Wellbeing applies to: a. Financial Business Management. b. Practice Management. c. Self Management and Solicitor Wellbeing. d. Irish or English Language Enhancement as it relates to the practice of law. e. Foreign Language Enhancement as it relates to the practice of law.

a. Client Care. b. Professional Standards of Solicitors. c. Solicitors Acts 1954 to 2015 and Regulations made thereunder. d. Accounting and anti money laundering compliance. e. The Society’s Guide to Solicitors Anti Money Laundering Obligations. f. Risk Management. g. Data Protection. h. Solicitors Guide to Professional Conduct. i. Professional Ethics and Maintenance of Standards of Best Practice complying with regulatory obligations. j. Processing of Complaints against Solicitors by the Society and Functions of the Legal Services Regulatory Authority in the Courts.

Barra O’Cochlain, DSBA Litigation Committee

CENTRAL OFFICE UPDATE The Central Office have been operating a system whereby a page can be signed by someone wishing to make an appointment on arrival.

Those names are periodically taken into the Central Office itself and the parties are then called subsequently if and when there is a free slot. Sometimes when the papers are taken in, the person outside is unaware that the waiting system is operating, and in order to alleviate any misunderstandings the Central Office will shortly be operating a digital system at the door where parties can put in their name and the time of their arrival and they will be called on a rota system depending on free slots becoming available.

Barra O’Cochlain, DSBA Litigation Committee

NEW CPD REGIME Since the 1st of January 2024 the CPD Regime has changed, and these changes are encapsulated in Statutory Instrument 419 of 2023 which came into force on the 1st of January last.

The purpose of this note is to make sure you are aware of the relevant changes, and they are as follows: 1. Firstly, the overall requirement as a practising Solicitor with less than 40 years experience is 25 hours. . Of those hours, five of those must be in person and cannot be remote learning.

3. Changes have been made to the requirements in relation to what were up until now Practice Management CPD points and regulatory CPD points.

Two new headings have been introduced.

Professional Development & Solicitor Wellbeing The re uirement for this is five hours. set out below a more detailed definition of the heading.

Client Care & Professional Standards The requirement for this is three hours CPD. 58 the Parchment

Solicitor Wellbeing refers to the ongoing resilience and/or psychological and emotional health of a Solicitor engaged in a practice as a Solicitor and includes activities that contribute to dignity at work and a positive workplace culture.

Client Care & Professional Care Standards includes:

Needless to say, the function of this Article is to make sure that you do not discover these new changes in late December 2024 when you are completing your application to the Law Society for your new practising certificate.

Matthew Kenny, DSBA President

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

If not, please contact Maura Smith.

Dublin Solicitors Bar Association, Unit 206, Capel Mary’s Dublin Abbey, 2, Dublin 7, Ireland.

Dublin Solicitors Bar Association, 1stThe Floor, 54 Building, Dawson Street, Ireland.

Tel: 01 670 6089 • E-Mail: info@dsba.ie • Update your personal details online at:

www.dsba.ie

Is this your copy-Filler full page.indd 1

01/07/2015 15:01

Letter to the Editor

An Existential Threat to our Profession Dear Editor, The biggest threat to the viability of our profession and indeed all commercial activity in this country now isn’t AI but a disturbing and dramatic shift in the mindset and application of officialdom to virtually every transaction in life in recent times.

It seems to have crossed a rubicon into the territory of crazed obsession about two years ago and is literally getting worse by the week, if not daily. It is getting increasingly difficult if not impossible to get anything done now, so obstructionist and negative is the attitude of, for example, the PRA now styling itself after another no doubt hideously expensive makeover “Tailte ireann , the P A , Court offices with some noble exceptions and in particular the High Court Central Office some of whose sta seem to revel in peering at Summonses for issue perhaps with the Statute of Limitations about to expire trying their best to find a aw and then triumphantly rejecting it and sending you o with your tail between your legs to try again another day after you make another appointment, of course and maybe you’ll be lucky and get someone else the next time.

Tasks that perhaps five years ago might have taken me 10 minutes to accomplish can now sometimes take up to half a day. You don’t need to be an economist or accountant to figure out what the e ect of that is.

We recently had an application for a Grant of Probate rejected because the Oath referred to “siblings when the Probate Office official decided that on that particular day, he/she wasn’t in the mood for “siblings and rejected it, stating that we should have used “brothers and sisters”.

Recently returned a call to an official in A A to the mobile number she had provided whereupon she insisted on going through a security test “because of GDPR”.

The biggest scandal of all is the new EPA regime. I cannot understand why the Law Society isn’t howling from every media available at this appalling debacle.

Our legislators who never listen to our warnings replaced a perfectly functioning system last year with a new one so complex and utterly unworkable and designed it seems to thwart and render the process so difficult that as at last November only were successfully registered in 0 as opposed to around ,000 the previous year .

If this insanity doesn’t cease very soon, no houses will get bought or sold and no mortgages will get put in place yes, ’m talking about you, banks and building societies who inexplicably make billions annually, a mystery for such grossly inefficient, if not wholly dysfunctional, businesses and if officialdom doesn’t stop its compulsive attitude of trying to prevent anything from getting through, presumably because of a terror of their compliance department or a determination to avoid any responsibility in case anything should go wrong or a misguided belief that it’s the uickest way to get paperwork o their desk, then the profession and commercial activity generally is in for a torrid time if not entirely doomed.

Yours in burgeoning dismay, Richard E McDonnell Richard H McDonnell Solicitors LLP Ardee County Louth.

Editor’s comment Thank you for your contribution

Richard. Whilst the Parchment may not agree with the full contents of your letter, I welcome your views. A further example of your complaint is highlighted on Page 58 under the heading Injuries Board Warning.

60 the Parchment

Autumn 2024 dsba.ie Photography: Conor Healy

The DSBA’s Practice Management Committee hosted a seminar on the 16th July 2024.

The seminar saw the launch of the DSBA Precedent Overhead Sharing Agreement and addressed the topic of stepping down from practice.

The speakers at the seminar were Dr. Brian Doherty, Chief Executive of the Legal Services Regulatory Authority (LSRA); Padraig Langan, Head of Regulation at the LSRA; Tom Conachy (Accountant and Tax Partner at Strata Financial); Sorcha Hayes (Law Society) and Leo Mangan (Retired Solicitor). The Seminar was chaired by the President of the DSBA, Matthew Kenny.

DSBA Practice Management Seminar

Left: Tom Conachy, Sorcha Hayes, Brian Doherty, Leo Mangan, Matthew Kenny, Niall Cawley, Avril Mangan and Padraig Langan

Left: Robert Ryan and Leo Mangan Far left: Padraig Langan, Nuala Haughey and Brian Doherty

Right: Jim Gollogley, Susanna Cawley and Mary Henry Far right: Noelle Maguire, Kieran Johnston and David Pigot

Left: Helena Brady and Nuala Eustace Far left: Tom Conachy and Avril Mangan

the Parchment 61

Keith Walsh SC is a Dublin solicitor practising primarily in the area of family law and family disputes. He is a former President of the DSBA and former editor of The Parchment

News

New Family Law Practice Direction Keith Walsh SC writes that family law practitioners will be aware that the new Dublin County Registrar Ms. Patricia Hickey has made a number of important changes to the scheduling of Case Progression hearings

T

here have been important changes in practice and procedure and a new Practice Direction for Case Progression from the Dublin County Registrar, the most recent Practice Direction is set out below.

Practitioners are also reminded to ensure that Notices to Trustees have been served on all pensions prior to the first Case Progression Hearing and that the appropriate Affidavit of Service of same is filed in the Circuit Family Court in plenty of time before the hearing.

The matter will not be allocated a date for hearing or transferred to the list to fix dates in the absence of Notice to Trustees having been served and the Affidavit of Service having been filed in the Circuit Family Court in advance of the Case Progression Hearing and the case will be adjourned to the next available Case Progression date.

Practice Direction 8 October 2024 “Dublin - Circuit Family Law - Case Progression lists will now take place during Callovers The Dublin Circuit Family Law Case Progression lists before the County Registrar have now been rescheduled to Call Overs at 10:00am and 14:00pm on Case Progression day’s Assigned courtroom details: Court 35, 1st Floor, Áras Uí Dhálaigh, Four Courts Complex, Inns Quay, Dublin 7.

Please note the new dates set out below for case progression.

Check the legal diary on Courts.ie to confirm dates in October, November and December.

31 October 07 November 14 November 15 November 21 November 28 November 05 December 12 December 19 December

Rescheduled to 24 October 2024.

Please check legal diary for amended times.

Rescheduled to 7 November 2024.

Please check legal diary for amended times.

Please check legal diary for amended times.

Rescheduled to 21 November 2024.

Rescheduled to 12 December 2024.

Please check legal diary for amended times.

Rescheduled to 16 January 2025.

https://courts.ie/news/dublin-circuit-family-law-caseprogression-lists-will-now-take-place-during-callovers P 62 the Parchment

Autumn 2024 dsba.ie Photography: Enrique Moreno Esquibel

The DSBA held a very successful annual conference in Bilbao, Spain from the 19th to 22nd September 2024.

The Gala Dinner took place in Sociedad Bilbaina in the city and was attended by a large contingent of over 100 attendees from Dublin together with some Spanish legal colleagues.

DSBA Annual Conference in Spain

Left: Martin Lawlor, Bernie Lawlor, Stuart Stein and Kearrey Graham

Left: Kate Moylan and Lisa Tyndall Far left: Maureen Harewood, David Smyth, Dermot Simms and Morette Kinsella

Right: Olivia McCann, Barbara Beatty and Fergus MacSweeney Far right: Michael O’Doherty, Eimear O’Doherty, Michael Mulcahy and Veronica Gates

Left: Marie Therese Lacy, Margaret McGinley and Orlaith Traynor Far left: Javier Diago, Biscay Bar Association, and Rocco Caira Finazzi, Honorary Consulate Embassy of Ireland

the Parchment 63

DSBA Annual Conference in Spain

Right: Cliona Costello, Adrienne Cawley and Carol McGuinness Far right: Kevin O’Higgins and Avril Mangan

Left: Darren Gray, Mark O’Sullivan and Clodagh Buckley Far left: Daisy Barron and Fiona Barron

Right: Kearrey Graham and Clare Downes Far right: Keith Walsh and David Walley

Left: Bernie Malone, Orla O’Donnchadha and Paddy Doherty Far left: Gena O’Connor and Angela McCann

64 the Parchment

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