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D UB LIN SOLICITORS’ B AR ASSOCIATION MAGAZ INE | SPRIN G 2017 | ISSU E 71

ÁINE HYNES CROSS-EXAMINED MEDIATION BILL UPDATE

LOAN VULTURES Who are the international funds swallowing up Irish loan portfolios?

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Spring 2017 dsba.ie

From the Editor

W

elcome to the spring edition of the Parchment. Running your own legal practice is a constant challenge but most of us genuinely enjoy what we do, helping our clients overcome their difficulties and meeting their legal needs. Getting paid for our work is important and there is great satisfaction in successfully settling or concluding a case that might have been ongoing for two or three years. Many solicitors have to wait that length of time to get paid for their work. The other side receive our bill of costs and often, a fraction of what we should be rightfully paid is offered. As a result, the matter may have to go to taxation. The taxation process in the High Court has failed the legal profession in recent years. There is now only one taxing master in situ. As a result, a further prolonged wait is endured to resolve the issue of costs. Many solicitors compromise their amount in costs as they are not in a position to wait indefinitely for the taxation system to measure the hard work put

in on their file. This is financially impacting on the profession to such an extent that many colleagues are struggling to keep their practices afloat. The DSBA under the stewardship of President Áine Hynes is addressing the situation with the establishment of a special taskforce. The implementation of the Legal Services Regulation Act will change the entire costs system in any event and this will be a game changer once enacted. The highly anticipated Mediation Bill 2017 was published on February 9th 2017 (see pages 36-37). The bill marks further progress in the trend towards encouraging parties to resolve their disputes by means other than litigation, which is to be welcomed. Enjoy the Easter break and the arrival of spring.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2016/2017

ROBERT RYAN DSBA Vice President

GREG RYAN Treasurer Chair - Commercial Law Committee

ELAINE GIVEN Honorary Secretary

TONY O’SULLIVAN Programmes Director

JOSEPH O’MALLEY Chairman of the Litigation Commitee

DIEGO GALLAGHER Chair - IP and Technology Committee

SUSAN MARTIN Chair of Family Law Committee

JOHN O’MALLEY

MATTHEW KENNY

NIALL CAWLEY

LAURA HORAN Chair of Younger Members’ Committee

PAUL RYAN Chair of In House Committee

JOAN DORAN

KILLIAN O’REILLY

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

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

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

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

AINE HYNES DSBA President

EDITOR John Geary PARCHMENT COMMITTEE Julie Doyle Stuart Gilhooly Áine Hynes Geraldine Kelly Killian Morris Gerry O’Connell Kevin O’Higgins Joe O’Malley Keith Walsh COPYRIGHT The Dublin Solicitors’ Bar Association

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Spring 2017

Contents 6

Here for a good time, but not for a long time? Hugh McDowell, BL looks at the international funds which have been buying up residential loan portfolios in Ireland

10

Work hard, be ambitious and take opportunities as they arise, people are so often afraid to take the opportunities page 26

CROSS EXAMINED... Ă INE HYNES

Limited Liability for Solicitors - An Update Robert Ryan provides an update on limited liability partnerships and their much anticipated arrival

12

Call for Suicide Prevention Authority Suicide campaigner and solicitor Noel Smyth unveils plans to establish a National Suicide Prevention Authority

16

Ready for Brexit?

18

DSBA Book Awards Shortlist

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Rent Control

Matthew Austin takes a cheerful look at Brexit and says opportunities will arise for solicitors

We announce the shortlist nominees for the annual prestigious DSBA Book Awards

Joan Maclean and Killian Morris give an overview of the new rent control legislation and assess its impact on the rental market

Dublin Solicitors’ Bar Association 1st Floor, 54 Dawson Street, Dublin 2, Ireland T: 01 670 6089 E: info@dsba.ie W: www.dsba.ie

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Spring 2017 dsba.ie

Contents

REGULAR FEATURES 01 Editor’s Note 04 President’s Message 50 In Practice 51 News 58 Photocall 64 Closing Argument

06 24

Anti-Money Laundering Legislation Update Leonora Mullett warns practitioners to be aware of the new European Legislation

26

Cross Examination

30

Solicitors’ Duty of Care and Wills

32

Indiscriminate Data Retention

34

The Mediation Bill 2017

36

A Senior Counsel Solicitor?

42

Being Good Is Not Enough

44

Offshore Matters

46

The Ryan Report

Killian Morris interviews DSBA President Áine Hynes

Tim Bracken advises that precision in taking instructions is crucial as well as duty of care

42

Greg Ryan looks at a recent ECJ decision on data retention

John O’Regan summarises the main provisions of the new bill

Kevin O’Higgins outlines changes under the new Legal Services Regulatory Act

Flor McCarthy takes an insight look into how we practice

Brian Broderick warns of dramatic tax hikes from May 1st

Greg Ryan reports on some recent technology case law

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Message from the President

DSBA to the Fore

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his is my second President’s message and as I write to update you on the work of the DSBA, it is abundantly clear that we are living in challenging times of great global political uncertainty unfortunately, a time of building walls and not bridges. This presents legal and social challenges which we must prepare ourselves and the profession to meet. We at the DSBA have been busy looking to assist practitioners in meeting these challenges by building bridges and reaching out to all in the legal profession. I have visited with bar associations around the country and currently, my vice-president, Robert Ryan and I are meeting individual firms and getting feedback on how the DSBA can assist and meet the specific needs of the profession. Thank you all for your kind messages of support and enthusiasm for the work of the DSBA. My message to the member firms and all of you is that the DSBA is your association, existing to advance your interests, and our client’s interests. I am pleased to say that we have been busy working with various parties including the Law Society and the Legal Services Regulatory Authority (LSRA) on various aspects of the rollout of the Legal Services Regulatory Authority Act, including feedback on the Section 150 notices to replace the Section 68 notices. We recently had a very positive meeting with the Interim CEO Renee Dempsey. We are involved in the consultation process with the LSRA on legal partnerships (as distinct from limited partnerships). You will have seen my messages to you asking for your views and opinions on the notices and the legal partnerships and this is your opportunity to shape the practical application of the legislation. The DSBA Legal Services Act taskforce has been extremely busy holding emergency meetings to correlate responses on these issues on your behalf. In addition, the DSBA has established a special taskforce on the issue of the failings in the taxation of costs. As you will all know, we are now in a position where we have one taxing master and the system has simply ground to a halt. This is an untenable position for the legal profession, no matter which party you act for in any particular issue and impacts on our businesses and our employees. The issue of the provision of extra taxing masters has been raised time and again with Government. We now need to look for other solutions. The taskforce

has met with experts in the profession and I have met with the judiciary to explore the viability of utilising the current provisions of the superior court rules so that when the court has ordered a party to pay costs, it may order an amount to be paid on account before the costs are assessed. These Orders can be made with undertakings that if that amount is not achieved on assessment it would be repaid. I will be keeping you updated on our efforts in the next edition of the Parchment. I am pleased that our seminar programme for 2017 is up and running and busy responding to the needs of the profession and to the times we live in. I am very proud of the work that the committees have been doing, updating our bank of precincts producing up-to-the-minute and informative seminars on behalf of the DSBA and the profession. On the 23rd of March, the DSBA younger members committee hosted a seminar focused on Brexit and the challenges and opportunities that it will bring for the profession. I want to take this opportunity to announce the establishment of a new specialised Employment Law Committee which has come about as a result of feedback from our meetings with individual firms. This is an exciting development for the DSBA. In other news, the DSBA “Consult a Colleague” committee and I met with Law Care in January of this year. This was an extremely positive meeting which enabled us to focus on the significant issues of concern for the profession. Put very simply, the DSBA “Consult a Colleague” role is to assist practitioners with issues arising in their practice, while Law Care is a helpline, promoting and supporting good mental health and wellbeing in the legal profession. Both organisations were in a position to identify issues causing particular stress and strain for solicitors. Common threads are the challenges of running a business and being sufficiently prepared for this. This is something that I consider needs to be addressed at a basic level as part of professional training for solicitors. In addition, appropriate training, and indeed support, from the regulatory body should ideally be provided to solicitors who are setting up in practice, to support them in establishing good procedures and practice from the outset. This is an issue we have raised with the LSRA. In reflecting on the first five months of my Presidency, what comes to the fore, is what a truly great pleasure it has been meeting with all of you, members of the profession, honourable members of the Judiciary and indeed, you our past Presidents. I have been finding out a little bit more about your contributions to the DSBA. For instance, on meeting with

David Walley, former past President and a co-founder of CORT, I was struck by the contributions that CORT has made to the DSBA bursary fund for many years. David started these contributions to ensure that solicitors coming from a non-legal background, without resources, would be assisted in realising their dreams of becoming solicitors. I know many of you have used the CORT software package over the years and I think it is right that you know how some of your licence fee is applied. Finally, members and colleagues, I am pleased to announce two major social events for the DSBA. The first is our Annual Dinner and Law Book Awards, taking place on 23rd June in the Conrad and secondly, I am pleased to formally announce our Annual Conference. It is taking place in Santiago de Compostela, Spain, from 21st to 24th September. We will be staying at the Parador Hotel, which is one of the oldest hotels in Spain and was built by 1486 by King Ferdinand and Queen Isabella, to provide shelter for weary pilgrims. I hope, dear colleagues and members, that you will be in able to join me and the DSBA to take a break from the hustle and bustle of our busy lives and enjoy its tranquillity. As ever, please do not hesitate to contact me at any time if you have any particular issues which need to be dealt with on behalf of you and the profession. Aine Hynes, DSBA President Building on a Great Tradition

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Here For a Good Time, But Not a Long Time? Hugh McDowell BL looks at the international funds which have been buying up residential loan portfolios and some recent legal issues which have been litigated in the Irish courts

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he seismic changes which have taken place in the Irish property market since the downturn have been in no small part due to the activities on this island of international entities that specialise in the acquisition of distressed property loans. They are known as ‘investment vehicles’, ‘third party loan buyers’, even the much-maligned ‘V’ word – but just who are the foreign players in the Irish market, and what do they own?

The Consumer Protection (Regulation of Credit Servicing Firms) Act 2015 Before delving into the detail, it is necessary at the outset to comment on the regulatory environment in which these entities operate, and in particular to distinguish between the investment funds themselves which own the property, and what are known as Credit Servicing Firms (CSFs). CSFs are a creation of the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015 which aims to ensure that homeowners are afforded the same

regulatory protections regardless of whether their mortgage is owned by a licensed or unlicensed entity. The 2015 Act requires investment funds to nominate a CSF to deal directly with mortgagors. The CSF’s obligations include notifying the borrower of changes in interest rates or in payments due; taking any necessary steps for the purposes of collecting or recovering payments; and communicating with the borrower in relation to matters such as errors and complaints. CSFs are not involved in overall portfolio management strategy or importantly, in enforcement. Critically, although the funds themselves are not regulated by the Central Bank, CSFs are regulated and are required to comply with the Code of Conduct for Mortgage Arrears (CCMA) and other regulatory codes.

The Who’s Who of International Investors in Irish Residential Property The list of firms touched upon in this article is not exhaustive and is designed only to give a broad flavour of main firms in the market.

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Spring 2017 dsba.ie Hugh McDowell is a barrister specialising in commercial law. He spent a number of years working in Ireland’s financial services sector before commencing practice at the Bar

Pepper Group is an Australian non-bank lender which became the first major international investor to enter the Irish market with the acquisition of GE Capital’s Irish mortgage book in 2012. The transaction financed by Goldman Sachs, saw GE apply a haircut of c. 60% to its 3,500 mortgages which had a face value of around €600m. In December 2016 it was reported that Permanent TSB had pulled out of a deal to purchase €100m worth of performing residential mortgages from Pepper. Pepper Asset Servicing is also one of the biggest CSFs in the Irish market and services mortgage loans acquired by Shoreline (a subsidiary of the Loan Star Group) and Cerberus, as well as Pepper’s own assets. Although funds are typecast as being out to make ‘a quick buck’ from their investments in Irish property, Pepper indicated its long-term commitment to the Irish market in November 2016 by announcing that it would commence selling mortgage products directly, thereby becoming the first new mortgage lender in Ireland since the crash.

Conveyancing/Litigation

Lone Star is a US private equity firm whose most common manifestation in an Irish context is an entity called LSREF III Stone Investments. Lone Star acquired Start Mortgages from Investec in September 2014, a transaction which secured not only a mortgage book of 3,700 mortgages with a face value of €677m, but also an Irish banking licence. Lone Star also purchased some of IBRC and Irish Nationwide’s residential loans in 2013 and the Project Paris portfolio of Bank of Scotland Ireland mortgages from Lloyd’s in 2014. In April 2016 it was reported in the media that Lone Star was in the process of selling back some of its performing residential loans to Bank of Ireland. This represents the first occasion since the crash that mainstream Irish banks have sought to acquire residential mortgage assets back from international investment funds. Apollo Global Management is another fund specialising in distressed assets. Its European entity is known as Lapithus and its Irish investments are held in the name of Tanager. It acquired the £610m worth the Parchment 7

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It was reported that Ulster Bank had already commenced repossession proceedings in respect of all of the owneroccupied properties, 88% of which had arrears of over three years of Bank of Scotland Ireland loans known as Project Phoenix from Lloyd’s in December 2013 with a haircut of nearly 60% applied. Its credit servicing activities are carried out by Lapithus Management DAC. Mars Capital is owned by Oaktree Capital, a US private equity firm. Mars acquired €468m worth of mortgage loans held by Springboard, a joint venture between Permanent TSB and US bank, Merrill Lynch. It also acquired some of the Project Sand and Project Pearl arising from the liquidation of IBRC (which included Irish Nationwide). Cerberus has become something of a household name since the public controversy involving the sale of NAMA’s Northern Irish loans known as Project Eagle. However, its acquisition in October 2016 of hundreds of Danske Bank’s residential mortgages – Cerberus’s first foray into the housing market south of the border – received a good deal less media attention. Around the same time, Cerberus (via its Irish entity Promontoria) also acquired Ulster Bank’s portfolio of non-performing loans known as Project Oyster. The sale of those assets which had a face value of €2.5bn, represented the first major disposition of impaired assets by a mainstream Irish bank. Only 29% of the loans sold were residential mortgages, split between buy-to-lets (19%) and around 900 owner-occupied properties (10%). It was reported that Ulster Bank had already commenced repossession proceedings in respect of all of the owner-occupied properties, 88% of which had arrears of over three years.

Legal Issues Facing Funds The unprecedented influx of foreign capital into the Irish property market has given rise to novel legal issues to be dealt with by our courts. Whereas the fallout of the Court of Appeal’s decision regarding rateable valuation in Permanent TSB v. Langan [2016] IECA 229 and the subsequent passing of the Courts Act 2016, affected both Irish banks and international investment funds alike, certain other recent legal developments are of particular consequence for parties who have acquired loan portfolios from domestic lenders. In Harrington v. Gulland Finance Limited [2016] IEHC 447 the High Court granted an interlocutory injunction preventing the appointment of a receiver over certain commercial units on the basis that, although IBRC validly transferred the defendant’s loan to the first defendant, the instrument by which the charge over the commercial units had been transferred had not been registered in the Land

Registry and had not been lodged for registration. Baker J. held that Section 64(2) of the Registration of Title Act 1964 which provides that an interest in a charge does not vest in a transferee until the transferee is the registered owner of the charge, gave rise to an arguable case that the appointment of the second defendant over the commercial units in question was invalid. The apparent effect of this case is to make registration of the transfer of a charge with the Land Registry a necessary pre-condition of the enforcement of security. However, it should be noted that at the time of writing a full hearing of the action has yet to take place. Anecdotally it appears that sales of distressed registered properties from receivers or the funds themselves as mortgagee are proving impossible to complete until the transfer of the charge has been registered. Also of importance to parties acquiring loan portfolios from Irish lenders (and indeed insolvency professionals, purchasers of the underlying assets and their funders) is the decision of Murphy J. in England v. Promontoria (Aran) Limited [2016] IEHC 662. There the High Court stayed the appointment of a receiver over the plaintiff’s lands on the basis that the relevant deed of transfer was redacted to the extent that the plaintiff had not received proof of the transfer of his mortgage from Ulster Bank Ireland Limited (UBIL) to the defendant. The court held at paragraph 31: ‘The defendant has also sought to uphold its entitlement to redact the deeds because of the commercial sensitivity of certain information contained in the deeds. The court has some sympathy for this argument. It appears to the court that the consideration for any sale, while of no doubt of interest to the plaintiff, is a matter between the purchaser and the seller and is not information to which he is entitled. Similarly, the plaintiff is not entitled to details of other properties included in the sale. However, it also appears to the court that the defendant is not entitled to redact the identities of those who executed and witnessed the agreement on behalf of UBIL. The plaintiff is entitled to know the identity of the signatory and proof that at the material time, that person was a duly authorised signatory on behalf of UBIL. Similarly, the plaintiff is entitled to proof that the contract was properly witnessed.’ Although the court left open the possibility that other redacted sections of the deed of transfer including certain recital clauses might also need to be disclosed, the redaction of the identities of those who witnessed the transfer alone was sufficient for the court to put a stay on the appointment of a receiver.

Conclusion The swathe of funds, vehicles and loan acquirers that have purchased residential property loans in this jurisdiction in recent years has brought welcome liquidity to Irish banks and challenging legal issues to Irish lawyers. With recent media speculation suggesting that enforcement of security in the courts will peak in 2017, legal professions will need to be aware of the marketplace and related legal issues. P

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Robert Ryan is Vice President of the DSBA and a member of the DSBA Council. He is a member of the DSBA taskforce and the Law Society taskforce on the Legal Services Regulation Act. Robert is the principal of Doherty Ryan & Associates

Limited Liability for Solicitors an Update Robert Ryan provides an update on limited liability partnerships and their much anticipated arrival

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s readers of the Parchment will be aware the DSBA has long been an advocate of the availability of limited liability business structures for solicitors. Our advocacy, together with that of the Law Society, was finally rewarded (at least in part) by the very welcome inclusion in the Legal Services Regulation Act 2015 [“LSR Act”] of express (and not just consultative) provisions to entitle solicitors, if they wish, to practise through a Limited Liability Partnership [“LLP”] business structure. The LSR Act was enacted by the Oireachtas as of December 30th 2015. Given that a period of 14 months has now elapsed since the enactment of the LSR Act, readers may now question when the LLP business structure will become available for use by solicitors. A fair question indeed, and one which this article will endeavour to address.

Statutory Background The LLP structure set out in Part 8, Chapter 3 of the LSR Act is based on using (and thus preserving) the ordinary partnership legal structure that presently applies to solicitors’ firms, with the addition of limited liability protection for the partnership (in the terms and to the extent provided for in the LSR Act) - subject that is to the partnership being registered with and authorised by the Legal Services Regulatory Authority [“Authority”] as an LLP. Thus the Partnership Act 1890 is stated to apply to an LLP to the extent not inconsistent with the LSR Act. The form of limited liability provided for in the LSR Act is stated in broad terms – such that a partner in

an LLP is not (subject to certain exemptions such as fraud) to be personally liable, by reason only of his/her being a partner or being held out as being a partner in the LLP, by way of contribution or otherwise for any debts, obligations or liabilities arising in contract, tort or otherwise of the LLP or of himself/herself or of any other partner in the LLP or of any employee/agent/ representative of the LLP. The LLP is defined as “a relevant business in respect of which an authorisation granted under section 109, is for the time being in force”. A ‘relevant business’ in turn is defined as “(a) a partnership of solicitors or (b) a legal partnership” (the latter including, if implemented under the LSR Act, a partnership of solicitors and barristers). A relevant business which wishes to operate as an LLP must make an application for authorisation to the Authority. The Authority is required under the LSR Act to make regulations in relation to the operation and management of LLPs including (without prejudice to the generality of the foregoing) the following topics: • form of LLP application; • amount of LLP application fee; • business information on the LLP (partnership composition, place of business etc); • amount of professional indemnity insurance cover of the LLP; • information for clients as to the nature and effect of an LLP; and • ongoing compliance information requirements for the LLP.

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Spring 2017 dsba.ie

Practice Management

The Authority is required to make its decision on the application for LLP authorisation within 60 days of receipt, subject to the application being in the required form and the required information is received. Once authorised the LLP will thereafter be subject to the regulatory oversight of the Authority in respect of compliance with the applicable LLP related statutory requirements. The LLP will also be noted on the LLP register maintained by the Authority and available for public inspection.

Statutory Implementation The LSR Act only comes into operation in accordance with such order(s) as may be made by the Minister for Justice and Equality [“Minister”]. To date three such orders have been issued, two of which address the establishment of the Authority (by part commencement of Parts 1 and 2), resulting in the Authority being established as of October 1st 2016. The third such order addresses the public consultation to be conducted by the Authority on ‘legal partnerships’ (Part 8, Chapter 2, section 118). In reply to a question in the Dáil on January 17th 2017, the Minister stated that there would be a phased commencement of the remaining parts of the LSR Act in the first half of 2017. In her reply the Minister made express mention of a number of topics as being the subject of current focus, such as legal costs, but did not mention LLPs. Once the necessary commencement order has issued, one can then move to the next implementation stage, which is for the Authority

to prepare such regulations as are required under the LSR Act in relation to the operation and management of LLPs. The topics for inclusion in such regulations (as listed above) appear to be reasonably straightforward to deal with and thus to implement. Some consideration will likely need to be given to the applicable professional indemnity cover requirements for an LLP, as well as any other implementation points arising from the terms of Part 8 Chapter 3. One would hope that the implementation of LLPs will be given as much emphasis and early focus as other topics under the LSR Act, being (we would submit) equally warranted given the aim of the LSR Act (per its explanatory memorandum) to “better balance the respective interests of the public, consumers and legal professionals in their respective provision and consumption of legal services”.

Conclusion Thus (and in answer to the question posed above) a possible LLP implementation timeline may be as follows: • by end of June 2017 - ministerial commencement order to issue; • by late 2017 - LLP regulations (and related forms) drafted and adopted; • by end of first quarter 2018 – Authority open to receive LLP applications. Once the necessary commencement order has been issued, the DSBA will be advising its members accordingly. A case for now, of watch and wait. P

One would hope that the implementation of LLPs will be given as much emphasis and early focus as other topics under the LSR Act

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Call for Suicide Prevention Authority Solicitor Noel Smyth who is a campaigner against suicide, plans to establish a National Suicide Prevention Authority on a statutory basis and he calls on your support for this most noteworthy proposal

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uicide is the biggest killer of young people in Ireland and affects all ages and demographics in every community. Three times more people die by suicide than die on our roads, yet over ten times more is spent on road safety than on suicide prevention. 3TS, a registered charity working to help prevent deaths by suicide, has long called for a coordinated approach to suicide prevention and says that only a suicide prevention authority, similar in structure to the Road Safety Authority, can deliver an effective solution. Suicide is indiscriminate and undoubtedly you can call to mind someone you know who has been bereaved by suicide. Worse still, you may have suffered the agonising loss of a beloved family member or friend and are all too familiar with the utter devastation that suicide leaves in its wake. Solicitors are at the core of their community, they meet families who have suffered loss as a direct result of suicide and are aware of the fallout and the consequences for these families. Indeed, many in our own profession have died by suicide.

Why? Because they feel that they have no support and no hope, some in our profession convincing themselves that as an advisor and problem-solver for clients, it would look like a weakness to seek help. And even if one could convince oneself to seek help, where is that help to be found? We hope to secure the support of the legal profession to come out in favour of our proposed Suicide Prevention Authority Bill, details of which can be viewed on our website, www.3ts.ie or by emailing info@3ts.ie. As a practising solicitor, I am aware of the influence that solicitors can bring to their clients which goes beyond the mere dispensing of legal advice. In truth, solicitors become social workers, confessors, marriage counsellors, interventionists and a whole host of other roles that are always based on their intention to help their clients in the best way possible. People in Ireland listen and seek the advice of their solicitors in a variety of matters. So when a solicitor gives their opinion and hopefully support for a particular project, that influence and support is immeasurable.

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Spring 2017 dsba.ie Noel Smyth is a solicitor and founder of the practice Noel Smyth & Partners. He is the co-founder of 3Ts (Turn the Tide of Suicide), a registered charity working to help prevent deaths by suicide through research, intervention and support

I have worked in small firms for my entire career, before eventually setting up my own practice in 1981. In each of these firms, one thing remained paramount and that was the importance of the solicitor and client relationship and the inherent trust that a good solicitor will instill in their client. Decisions made as a result of this relationship can be made to reverberate positively in all communities. Solicitors are not looking for votes and their advice in all aspects of life is thus of greater value because of the unique position that they hold in the community. If we can tap into this trust and support, the objectives of the 3Ts to turn the tide of suicide will receive a huge boost in our proposals to influence the Oireachtas to pass the Suicide Prevention Authority Bill. The bill is modelled on the Road Safety Authority and 3TS was fortunate enough to have Margaret O’Driscoll, BL draft the bill on a pro-bono basis. Margaret was also instrumental in drafting the Road Safety Authority Bill. The main objectives of the bill are as follows: • Create a framework for suicide and self-harm prevention in Ireland • Establish a Public Accounts committee to investigate spending and efficacy • Drive a cultural shift around suicide through a sustained public information campaign • Accelerate a mental health and suicide prevention education framework at all levels • Establish dedicated suicide prevention services in all A&E departments in Ireland • Co-ordinate so that best service providers are available to everyone in Ireland. The authority could also: • Co-ordinate licensing and regulatory regulations for service providers, therapeutic and other practitioners and non-profit organisations involved in suicide prevention, mental health and related matters.

• Co-ordinate research into the economic and social impacts of suicide and mental health issues. • Focus on delinquent and pervasive websites and bring court proceedings in its own right. Who would run such an authority? • An independent board with no hierarchy, similar to the RSA, with board members drawn from various areas of expertise. • The board would hold in its own way and right Government to account because of its independence so therefore the various pre-election promises made by all of the political parties would become a source of a reminder as to how important it is to hold politicians to account and the basis upon which they were elected. If the bill is successful it will enable this authority to have its own ring fenced funds incapable of being diverted and would address the ‘patchwork’ nature of the services that currently exist for those seeking help from mental illness. It will prevent suicides. Funding would be ring fenced and the authority would work cross-departmentally with various Government departments, i.e. Education, Health, Justice, Social Welfare etc, holding Government to account and, like HIQA, insisting on best standards of practice and increased access across services. The sad fact is that we are still on average losing two people per day through suicide where the information and a host of other issues on the collation and collection of that information remain opaque. We are unlikely to change attitudes and to help save lives unless and until we address this problem as being one which will continuously worsen with an increasing population. Greater numbers of young people are currently exposed to circumstances and influences without the necessary care and support that we are capable of giving them. In short, only a suicide prevention authority can do this. P

News

If the bill is successful, it will enable this authority to have its own ring fenced funds incapable of being diverted and would address the ‘patchwork’ nature of the services that currently exist for those seeking help from mental illness

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2017 DSBA A N N UA L CO N F E R E N C E SANTIAGO DE COMPOSTELA THURSDAY 21ST–24TH SEPTEMBER 2017

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✓ Three Nights in 5* Parador Hostal dos Reis Catolicos Hotel. ✓ Welcome drinks and canapés reception. ✓ Gala Dinner. ✓ Business Session with three hours CPD. ✓ Optional extras include walking tour of UNESCO World Heritage town of Santiago de Compostela, guided tour of Santiago Cathedral and golf at Real Aero Club. Visit the 2017 Annual Conference link on the DSBA website www.dsba.ie to download the Conference Booking Form.

BOOK ED NOW LIBMILITITY AVAILA ING RSON SHAR €685 PER PE 8TH APRIL 2017 IL VALID UNT

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Ready for Brexit? Matthew Austin takes a cheerful look at Brexit and warns of the known unknowns, the unknown unknowns and more importantly, the opportunities that will arise for solicitors

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rying to make sense of the United Kingdom’s decision to leave the European Union is a fool’s errand. Most of the gallons of ink that have been used in guessing what Brexit will look like or mean for Ireland is exactly that – guesswork. The “ifs” “buts” and “maybes” are too many to arrive at any sustainable conclusions at this remove. The reality is that we will have to await the outcome of the upcoming Article 50 negotiations. Even then, it will take many years for the true impact of the UK’s decision to leave to be felt in Ireland. That being said, the fog of uncertainty pending the Article 50 negotiations which has muddled us all since last June, has created impacts and consequences of its own. Arguably, it has also created some opportunities for those practitioners who are willing to adapt and move with flexibility in accordance with their clients’ requirements. Lawyers are being asked to grapple with the impacts of the Brexit-induced interregnum so that commercial life can continue without undue disruption in the interim. For those of us involved in the negotiation and drafting of commercial contracts the “Brexit clause” has emerged in varying guises, as an attempt to deal with an anticipated event, the nature and effect of which is unknown. A common use for a “Brexit clause” over the last number of months is to deal with issues surrounding the management of personal data processed in the UK, in the aftermath of Brexit. Equally, choice of law and jurisdiction clauses have been forensically examined and debated to an extent not previously experienced. Some seasoned legal commentators have commented upon the fact that Brexit may well have the result that contracting parties will no longer choose the United Kingdom as the appropriate forum for resolution of disputes concerning their contractual arrangements in light of

the potential impact on recognition and enforceability of UK judgments and orders. It has been surmised that Ireland is well placed to step into the breach and that parties can and should give active consideration to choosing Ireland as an appropriate jurisdiction for the resolution of international commercial disputes. That may be so. However, we must recognise that Ireland still has a distance to travel in achieving efficiencies in the dispute resolution mechanisms available to commercial entities. Whilst we can say with some degree of certainty that the commercial court division of the High Court, established in 2004, has been a success in terms of the management and disposal of high value commercial disputes, we must also recognise that other elements of our court system have not yet reached the levels of sophistication and efficiency achieved by their UK equivalents. Whilst clearly equipped with some of our finest judges, as well as rules and procedures designed to streamline the appeal process, the Court of Appeal continues to struggle with the backlog of appeals inherited from the Supreme Court, coupled with the increased number of appeals coming from the High Court. The recent changes to the superior court rules applying to the case management of High Court litigation are currently in abeyance for reasons beyond the control of the President of the High Court. The effect is that a number of the new case management facilities, such as the use of pre-trial conferences, the requirement for witness statements and the issuance of certificates of readiness by the High Court, will not take effect for some time. Clients continue to be amazed, and rightly so, at the length of time it takes to dispose of litigation in the High Court. The rules are ready and waiting to deal with this but they cannot currently be utilised.

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Spring 2017 dsba.ie Matthew Austin is a partner in the commercial and business department at Hayes Solicitors

Furthermore, we lag behind in the use and promotion of alternative dispute mechanisms. It is truly amazing that 2017 has arrived, spring has sprung, the daffodils are up and yet the Mediation Bill remains a bill. Whilst the latest iteration of the bill published earlier this year, seems to have a genuine chance of becoming law, it is disappointing from a practitioner’s perspective that it has taken this long. If Ireland wants to be seen as a real, viable alternative to the United Kingdome for the efficient resolution of international commercial disputes then steps need to be taken to remedy the shortcomings highlighted above. Truly commercial international entities will not tolerate a jurisdiction for the resolution of disputes that does not actively promote and encourage early and cost-efficient dispute resolution. A lawyer who doesn’t recognise his or her client’s requirements in this regard won’t be that client’s lawyer for very much longer. Those who think that alternative dispute resolution, and in particular mediation, is a poor relation of traditional litigation, must modernise their thinking or will likely find themselves consigned to the lawyers’ scrapheap! Another reason to cast doubt on the idea that Ireland is ready to take over from the UK as the centre of international commercial dispute resolution is the lack of a third-party contract rights regime. Ireland continues to confer primacy on privity of contract. In the UK, the ability for non-parties to enforce certain contractual rights has been in place for many years through the Contracts (Rights of Third Parties) Act, 1999. This mechanism is designed to reflect the reality of modern contractual arrangements including the interaction of third parties in less traditional business arrangements. In 2008 the Irish Law Reform Commission recommended that, subject to certain limitations, the privity of contract rule should be

changed so that a third party who the contracting parties clearly intended to benefit from their agreement, would be able to rely on and enforce the agreement if it is not carried out properly. Suffice it to say, over nine years later, no such changes to Irish law have been made. One of the most frequently discussed impacts of Brexit is the impact on financial services regulation, particularly in circumstances where UK-based financial services organisations will no longer be automatically authorised in their activities outside the UK, within the EU. Similar questions arise across the spectrum of regulatory law. If Ireland is to benefit from the potential migration of professional services from the UK then Irish regulatory law must be seen as fit for purpose. Most Irish regulatory law is a modern construct. However, it is important that those tasked with policing the regulatory environment are perceived by the international business and legal communities to be at the forefront of international thinking and practice. Practitioners have a part to play in their dealings with both regulators and their clients. Regulation should, as often as not, be collaborative as opposed to adversarial. Again, clients who feel they will get stuck in a mire of unnavigable regulation are unlikely to be enthused by the prospect of placing further emphasis on a presence in the Irish marketplace. Former US Defence Secretary, Donald Rumsfeld would have a field day in describing Brexit. We just don’t know what will happen. Far too many factors are outside our control to make predictions with any certainty. However, there are steps that could be taken to place Ireland on a better footing from a lawyers’ perspective, to avail of the opportunities that Brexit may bring. As to whether a general election this side of the water may lay waste to plans for the Mediation Bill 2017 and other necessary developments, Donald might classify that one as a known unknown! P

Brexit

If Ireland is to benefit from the potential migration of professional services from the UK, then Irish regulatory law must be seen to be fit for purpose

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Law Book Awards 2017 - the Shortlist Following a lengthy period of reading and consultation, the judges of the DSBA Law Book of the Year Awards are delighted to announce the shortlist for this year’s awards. The judges - Stuart Gilhooly, President of the Law Society; Keith Walsh, former Parchment editor; and John Geary, Parchment editor were struck by the extremely high

calibre of entrants this year. A gala dinner and prize giving ceremony will take place on Friday 23rd June 2017 at the Conrad Hotel, Earlsfort Terrace when the winners will be announced. Further details of the event available at www.dsba.ie The DSBA would like to sincerely thank its sponsors for this prestigious annual

event. Peter Fitzpatrick & Co. Legal Cost Accountants are sponsors of the Practical Law Book of the Year. Law Society Skillsnet are sponsors of the special merit award of Outstanding Contribution to Legal Scholarship. Byrne Wallace Solicitors are sponsors of the Law Book of the Year. The shortlisted books are as follows:

Nominees for DSBA Law Book of the Year K EANE ON COMPANY LAW

The Supreme Court Ruadhan Mac Cormaic, Penguin, €27.99

FOILING: GOLD

INTELLECTUAL PROPERTY LAW IN I RELAND

COLOUR VISUAL CLOTH COLOUR: AQUA BLUE FOILING: SILVER

Fourth Edition Third Edition

ROBERT CLARK MADDEN SHANE SMYTH NIAMH H ALL

Intellectual Property Law in Ireland, 4th Edition Robert Clark, Shane Smyth, Niamh Hall, Bloomsbury Professional, €245

THE LAW OF COMPANIES

CLARK SMYTH HALL

CLOTH COLOUR: WEAVER

M EDICINE , ETHICS AND THE L AW

INTELLECTUAL PROPERTY LAW IN IRELAND Fourth Edition

COLOUR VISUAL

The Politics of Judicial Selection in Ireland Jennifer Carroll MacNeill, Four Courts Press, €55

MEDICINE , ETHICS AND THE LAW

Third Edition

CLOTH COLOUR: IVY

DEIRDRE M ADDEN

cloth colour: REGAL

FOILING: GOLD

KEANE ON COMPANY LAW

foiling: GOLD

Fifth Edition

Fifth Edition

HUTCHINSON

G BRIAN HUTCHINSON

Children and Family Relationships Law in Ireland: Practice and Procedure Dr Geoffrey Shannon, Clarus Press, €149

COLOUR VISUAL

Fourth Edition

COLOUR VISUAL

Keane on Company Law 5th Edition G Brian Hutchinson, Bloomsbury Professional, €195

THE LAW OF COMPANIES Sponsors Fourth Edition

THOMAS B. COURTNEY

COURTNEY

Medicine, Ethics and the Law, 3rd Edition Deirdre Madden, Four Courts Press, €195

The Law of Companies 4th Edition Thomas B Courtney, Bloomsbury Professional, €275

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Spring 2017 dsba.ie

Book Awards

Nominees for DSBA Practical Law Book of the Year

• Orders 70A and 70B of the Rules of the Superior Courts • Land and Conveyancing Law Reform Act 2009

• Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 • Civil Law (Miscellaneous Provisions) Act 2011 • Children and Family Relationships Act 2015 • Marriage Act 2015

• Gender Recognition Act 2016 This comprehensive collection of legislation is indispensable for both family law practitioners and students.

igence claim

Deirdre Kennedy and Elizabeth Maguire are both practising barristers.

information

Contents

y numerous case examples along with practical des an appendix containing sample precedents. Negligence Litigation features a foreword by echnie of the Supreme Court.

actising solicitor for the past 35 years and has iod in the area of medical negligence law. He cialisation in birth injury and catastrophic injury e largest niche practice in the country, Augustus patients/plaintiffs who have suffered medical has acted in many of the landmark Irish legal y of which are covered in the text of the book.

Part 1: General Family Statutes: Guardianship of Infants Act 1964; Maintenance Orders Act 1974; Family Law (Maintenance of Spouses and Children) Act 1976; Family Home Protection Act 1976; Family Law Act 1981; Domicile and Recognition of Foreign Divorces Act 1986; Status of Children Act 1987; Family Law Act 1988; Judicial Separation and Family Law Reform Act 1989; Family Law Act 1995; Domestic Violence Act 1996; Family Law (Divorce) Act 1996; Family Law (Miscellaneous Provisions) Act 1997; Land and Conveyancing Law Reform Act 2009, Part 7; Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010; Children and Family Relationships Act 2015.

DICTIONARY OF IRISH LAW

• Order 59A of the Circuit Court Rules 2001

MURDOCH AND HUNT’S

egligence Litigation provides comprehensive ch claims from the taking of first instructions

A Practical Guide to Medical Negligence Litigation

The Irish Family Law Handbook brings together in one volume all the essential family law statutes and rules of court, fully amended. Now in its fifth edition, it is brought fully up to date to take account of the following:

Irish Family Law Handbook

p and guidance in how to confront and solve es which arise in the successful prosecution of a

A Practical Guide to Medical Negligence Litigation

regarded as one of the most complex, emotive f tort litigation. This handbook provides legal n of the key legal principles which underpin and cal negligence litigation.

Irish Family Law Handbook

Part 4: Miscellaneous: Bunreacht na hÉireann 1937, Arts 41, 42, 42A.

Boylan Michael Boylan

www.bloomsburyprofessional.com

Law

CLOTH COLOUR: TANGERINE FOILING: GOLD

Sixth Edition

Part 2: Court Rules: Circuit Court Rules 2001, Ords 59, 59A; Rules of the Superior Courts, Ords 70, 70A, 70B. Part 3: European Union Legislation: Council Regulation (EC) No 2201/2003.

MURDOCH AND HUNT’S

COLOUR VISUAL

Fifth Edition Kennedy & Maguire

www.bloomsburyprofessional.com

Fifth Edition

DICTIONARY OF IRISH LAW

Sixth Edition

BRIAN HUNT

HUNT

Kennedy & Maguire

Cover image © wundervisuals/istock ISBN 978-1-78451-587-4 also available from Bloomsbury Professional

9 781784 515874

90100 also available from Bloomsbury Professional

A Practical Guide to Medical Negligence Litigation Michael Boylan, Bloomsbury Professional, €195

Irish Family Law Handbook 5th Edition Deirdre Kennedy, Elizabeth Maguire, Bloomsbury Professional, €175

Murdoch’s Dictionary of Irish Law and Finance in Law, 6th Edition Retirement Brian Hunt, Bloomsbury 3rd Edition Professional, €165 John Costello, Blackhall Publishing, €20

The Modern Family: Relationships and the Law Tim Bracken, Clarus Press, €35

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Rent Control Joan Maclean and Killian Morris give an overview of the new rent control legislation and assess its impact on the rental market

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ne of the key cornerstones of the Government’s plan for the housing market, Rebuilding Ireland, the Government’s Action Plan on Housing and Homelessness which was published in July 2016 concerns the security and stability of the rental market. Significant changes were previously introduced under the Residential Tenancies (Amendment) Act 2015 (‘2015 Act’) with a view to stabilising the private rental market including the restriction on landlords carrying out rent reviews to once every ywo years only. The Planning and Development (Housing) and Residential Tenancies Act 2016 (‘2016 Act’) signed into law on December 23rd 2016 (and effective from December 24th 2016), has gone further to regulate both the frequency of rent reviews and also how the rent is set in a rent review or new letting. The concept of a Rental Pressure Zone (RPZ) has been introduced which allows the Minister for Housing to designate certain parts of the country as RPZs where the setting and review of rents in these areas is capped at 4% per annum. The 2016 Act also contains measures intended to provide greater security of tenure to tenants. Undoubtedly some landlords and investors will derive some comfort from the fact that new builds, substantially refurbished properties and previously unlet units fall outside these measures. However, it remains to be seen how the market will be impacted by these restrictions and whether the restrictions will have the desired effect or indeed, if it might serve to create a two-tier market.

Rent Control Provisions In an RPZ the new rent to be set (whether in a rent review or a new tenancy) cannot exceed the amount determined by the formula: R x (1 + 0.04 x t/m) m is either: 24 – where the tenancy is in existence prior to December 24th 2016 as a review is permitted only 24 months after it has been created 12 – where the tenancy is new or was created after December 24th 2016. t is the number of months between - The date the current rent was set, or - The date the last rent was set where there is no existing tenancy but there has been a tenancy in the two-year period prior to December 24th 2016. and - the date the new rent will come into effect R is the amount of the last rent set.

Any rents which are set are also subject to an overarching principle that the rents cannot exceed what would be the local market rent for similar properties. This restriction applies to all tenancies, whether or not they are situated within an RPZ. This is not a change and has always applied. Also when setting rents, a landlord must provide certain prescribed information to tenants which includes for a rent review, details of comparable rents and details of the applicable formula and, for a new tenancy, a statement of the amount of the rent last set and the date it was set. The precise information required in each case is set out in the legislation.

Examples A. Existing tenancy commenced on February 1st 2014. Rent of €1,400 per month. No reviews have taken place. Landlord wants to review the rent and serves 90-day notice with new rent intended to take effect on May 1st 2017 Formula €1,400 x (1+0.04 x 39/24) = €1,491 The maximum permitted rent on May 1st 2017 is €1,491 Same tenancy is reviewed effective May 1st 2018 Formula €1,491 x (1+0.04 x 12/12) = €1,550.64 The maximum permitted rent on May 1st 2018 is €1,550.64. B. New Lease intended to commence on May 1st 2017. The dwelling had previously been occupied by a tenant whose tenancy commenced on February 1st 2014 with a rent of €1,400 per month. No reviews took place. The previous lease terminated on February 1st 2017. Formula €1,400 x (1+0.04 x 39/12) =€1,582 The maximum permitted rent on May 1st 2017 is €1,582.

Application of New Rent Control Provisions The new rent control provisions apply to: • Setting of rents after December 24th 2016. This includes rents being set under new tenancies and rents being set or reviewed under existing tenancies. • All tenancies of dwellings located in an RPZ, with effect from December 24th 2016 the administrative areas of Cork City Council, Dublin City Council, Dun Laoghaire/Rathdown County Council, Fingal County Council and South Dublin County Council are designated RPZs. This RPZ designation is for the period from December 24th 2016 to December 23rd 2019.

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Spring 2017 dsba.ie Joan Maclean and Killian Morris are partners in the real estate team at AMOSS Solicitors

The Minister for Housing may designate other areas as RPZs based on reports and recommendations from the Housing Agency. By ministerial order of January 26th 2017 the Government has designated an additional 23 towns and all of Galway as RPZ.

Exemptions from New Rent Control Provisions The above rent control provisions (other than the requirement to adhere to local market rents) will not apply where: • No tenancy in two-year period prior to designation as an RPZ • The dwelling has been vacant in the two-year period prior to the designation as an RPZ – i.e. in the period December 24th 2014 to December 24th 2016. • If a new tenancy of a dwelling in an RPZ is entered into at any point after December 24th 2016 but the dwelling was not let during the period December 24th 2014 to December 23rd 2016. • New Units Lettings of newly constructed properties are not subject to the rent control provisions. It seems that international investors and purchasers of multiple units may focus their investments in this sector. • Substantial Refurbishment since rent was last set Rent control provisions do not apply where there has been substantial refurbishment of the dwelling – to an extent that it would result in an increase in the market rent of the dwelling – since the rent was last set. There may be difficulties in establishing an exemption on these grounds. The landlord will have to establish what would be the market rent for a property that has been refurbished and would have to compare to similar properties fitted out to a similar standard in the area. The landlord will have to then demonstrate that the refurbishment works would result in an increase in the market rent (and to identify the amount of the increase in market rent that is due to the refurbishment works themselves – and not just market changes).

Landlord & Tenant

• Rent Review Notice served or process commenced Rent control provisions do not apply where immediately before December 24th 2016 a rent review notice has been served on the tenant or the rent review process has been commenced.

It remains to be seen how the market will be impacted by these restrictions and whether the restrictions will have the desired effect or indeed if it might serve to create a twotier market

Frequency of Permitted Rent Reviews/Rent Certainty Measures Following the commencement of the 2016 Act reviews can be carried out as follows: • For existing tenancies in all areas the first rent review can take place only after expiry of a two-year period • For subsequent rent reviews in RPZs the rent review can take place annually but a two-year period continues to apply for tenancies outside RPZs, for the duration of the rent predictability measures introduced under the 2015 Act, i.e. four years from December 4th 2015 • For tenancies created after December 24th 2016 rent reviews are permitted annually • RTB practice indicates that notices are not to be served until after the two or one year limits have ended (i.e. notices served in advance which are due to expire after the limitation has ended are not properly served).

Conclusion The 2016 Act will certainly be of assistance to struggling tenants, but it does remain to be seen whether there will be a significant negative impact on residential property investors which might result in a reduction in badly needed investment in the sector. Anecdotally, it seems that many investment deals have stalled as a result of the new measures and it may also be that some of the larger players in the residential lettings market are considering a constitutional challenge to the legislation. From a lawyer’s perspective adverse decisions by the RTB are likely to have a significant impact on landlords’ income streams which will, in turn, reduce property values. This will make it more likely that such decisions will be appealed in the courts than ever before; which will necessarily create a demand for expertise in this area.

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Richard Grogan is principal of Richard Grogan & Associates

Employment Law

Bringing Claims to the WRC - be Wary Richard Grogan warns that many cases are being dismissed at the Workplace Relations Commission (WRC) where the employee has brought a claim under the wrong legislation

When an employee comes in and says that they have been dismissed, it is important to obtain the background facts instead of rushing into an unfair dismissal claim

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ne such case is ADJ-2456. In this case the employee brought a claim under the Safety, Health and Welfare at Work Act claiming that he had been dismissed for having made complaints under that Act. These related to such issues as oppressive behaviour from a foreman, being moved from site to site, being given demeaning jobs and ultimately being dismissed. The adjudication officer in this case held that none of the issues complained of by the employee including the dismissal, could be related to him having made a complaint. The adjudication officer in this case helpfully quoted the case of Considine -v- Limerick City and County Council HSD165 where the Labour Court set out the law in relation to this issue. The adjudication officer held that the case should fail because the issue complained of did not come within that remit, and the dismissal was not related to having made a complaint under the Safety, Health and Welfare at Work Act. There is an interesting aside in the decision whereby the adjudication officer has held that the termination of the employment could have been handled better as it “lacked fair procedures”. The adjudication officer pointed out that the complaint was under the Safety, Health and Welfare at Work Act and not under the unfair dismissal acts. This issue is going to come up in cases where an employee has contended that they were dismissed for example, for making a complaint under the Protected Disclosures Acts, or having brought a claim under the Organisation of Working Time Act and then was dismissed that this was penalisation, or in the above case a complaint to the Health and Safety Authority and thereafter was dismissed. When acting for employees in such cases it is useful for colleagues to also issue an unfair dismissal claim. Of course you cannot recover under two pieces of legislation for the same event. However, as in this case ADJ-2456, if a complaint had also been made under the

unfair dismissal acts the adjudication officer would then have been entitled also to look at the dismissal under that Act and from the aside in that case may well have awarded compensation. The converse however is also true. When an employee comes in and says that they have been dismissed, it is important to obtain the background facts instead of rushing into an unfair dismissal claim. It may well be that you will issue an unfair dismissal claim but there could also be a claim of penalisation or victimisation having exercised rights under numerous pieces of legislation. It is always better to issue under all possible claims. The matter can then be subsequently narrowed down at a later date. For example, if an employee comes in and states that they issued a complaint under the National Minimum Wage Act and had sought paternity leave under the Paternity Leave and Benefits Act, and was then dismissed, it may be advisable to issue a claim under the unfair dismissal legislation, and also for penalisation under the National Minimum Wage Act and the Paternity Leave and Benefits Act. In an unfair dismissal case compensation is limited to “economic loss” but in a penalisation case, an employee need not show any “economic loss”. If an employee gets a job the week after a dismissal the “economic loss” will be minimal. However, a penalisation case can result in significant compensation. Under the WRC rules the employer where there is a dismissal will have to lodge a statement. This will set out the employer’s grounds. The employee representative will then have an opportunity of looking at those facts and determining whether all claims should proceed, but only seeking compensation under one or alternatively identifying that only one of those claims need proceed. We are consistently seeing cases being lost where claims have been brought under the wrong act. I would caution colleagues to make sure that they sue before the WRC under every possible act which a claim could be made under first instance. P

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Leonora Mullett is a senior executive solicitor with Dublin City Council

EU Law

Anti-Money Laundering Legislation Update Leonora Mullett warns in-house solicitors, company secretaries and directors to be aware of the new European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2016

Records shall be kept of action taken in order to identify the beneficial ownership of the entity

S

.I. 560/2016 concerning beneficial ownership of companies and other incorporated entities came into force on November 15th 2016. There is no transitional period provided for, so the regulations take immediate effect with compliance obligations imposed on the incorporated entity, shareholders and beneficial owners. The regulations give effect to Article 30(1) of E.U. Directive 2015/849 (“the Directive”) and aim to prevent anti-money laundering and terrorist financing. The definition of ‘beneficial ownership’ is found at Article 3(6)(a) of the directive and means any natural person who ultimately owns over 25% or controls 25% plus one share of the entity through ownership of shares (direct or indirect), voting or ownership interest. Every relevant entity must keep a “beneficial ownership register” with details of the name, date of birth, nationality and residential address of each beneficial owner together with a statement of the nature and extent of the interest held by such owner and the date when each natural person was entered on to the register as a beneficial owner, and when they ceased to be an owner. Regulation (9) imposes a duty to keep the register up to date and an entity which fails to comply with it commits a criminal offence and be liable to a Class A fine up to €5,000.

Under Regulation 6, each relevant entity must send notice to any natural persons believed to be the beneficial owners of the entity and ascertain if those particulars required to be kept on the register, are accurate (save where that person has already provided the information). Again failure to comply can result in commission of an offence and a Class A fine. The regulations allow the relevant entity to require from any person information concerning beneficial ownership of the entity. However, this regulation is subject to a claim for legal professional privilege which could be maintained in the event of legal proceedings. In certain circumstances where an entity cannot identify its beneficial owners the names of senior managing officials (director and CEO) must be entered in the register even if such officials hold no beneficial or legal interest. Records shall be kept of action taken in order to identify the beneficial ownership of the entity. Application may be made to the High Court to rectify the register where the name of a beneficial owner is entered incorrectly or omitted. The High Court can decide any question necessary to be decided for rectification of the register. The details of beneficial ownership are not currently publicly available, though this could change in the future. Certain exemptions are available where the company/ entity is listed on a regulated market and is already subject to disclosure requirements under other EU law. P

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Scaling New Heights “Simon’s light had gone out having moved out on to an arête, 1,000 metres high on a knife edge. We were on the west face of Anoch Mor Mountain in Glencoe, Scotland. He was in complete darkness. I was waiting for him to get across, I was getting hypothermic and sick. I was certain I was going to die. I called Mountain Rescue when his light went out and but they said they were sorry, they couldn’t come up because the storm was too bad, they wished me good luck!”

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ine Hynes reflects on the moment in 2012 when she thought that she and her husband Simon had reached the end of the road on an ‘ice climb’ in the Scottish Mountains. As with all good Hollywood blockbusters, Áine and Simon lived to tell the tale and incredibly made it down to safety without any assistance, some 12 hours later. The DSBA’s current President remembers the moment very clearly and now finds comfort in the experience, every time a difficult issue crosses her desk. “When things are really serious at work, if I am ever really stressed; I sit back and know it is not a life or death situation. I know I have faced the biggest fears that anyone can face.”

When things are really serious at work, if I am ever really stressed; I sit back and know it is not a life or death situation. I know I have faced the biggest fears that anyone can face

Áine Hynes is the eighth female president of the DSBA in 80 odd years (she points to the fact that the Law Society has had only three female presidents in 170 years), but she is also one of a very rare breed of female mountain climbers in the country and was crowned Ireland’s Female Master Bouldering Champion in 2015. Áine began climbing at the tender age of 40 when she and her husband were due to climb Mount Kilimanjaro. At the time, there was a concern that Áine wouldn’t be able for the climb, as she was scared of heights! Of course, she immediately caught the climbing bug and has spent much of her spare time since then, when not running a successful legal practice, climbing cliffs and mountains that most of us can only imagine. Her

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Spring 2017 dsba.ie Killian Morris is a partner at AMOSS Solicitors

Cross Examination

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While she describes Norman St John as a true hero, she also mentions the likes of Justice Gerard Hogan and Noeline Blackwell as her heroes of the legal world – those who are not afraid to stand up for peoples’ rights ambition is to complete a category 8a sports climb, having recently climbed a category 7b. For the uninitiated, an 8a category climb is one that would make even Spiderman wince. When I ask her whether there’s a limit to how long she might expect to continue what seems like such a pretty dangerous pursuit, she shrugs and points to the fact that she knows a number of mountaineers who continue well into their eighties. It is also clear that both she and her husband share the same passion and are very much partners on the mountain, as well as in day-to-day life. “Simon is the navigator, but the partnership is really great. Being together on the mountain and surviving by ourselves; it’s an amazing thing for a couple to do.” Áine explains that the close bond and trust between them is critical to scaling the peaks safely and she jokes that there is certainly no room for ‘domestics’ on the side of a mountain. So what about the day job? How did somebody, who is so comfortable living on the edge, end up as one of the leading solicitors in the country dealing with disability and mental health law? Born and raised near Strandhill, Co Sligo, one of five children of Christy (a post clerk) and Anne (a stay at home nurse), Áine remembers coming to Dublin at the tender age of 16, in the back of a fruit delivery truck. She recalls “things were really tight - there were five of us at home. At about three o’clock in the morning the truck driver picked me up on the side of the road with just me, my bike and all my bags. He was to leave me into Dublin city centre but left me out in Lucan, so I had to cycle to UCD for my first day at college with all my worldly belongings”. When leaving school, Áine’s interest was in psychology and journalism, but unable to choose between the two, she decided to do arts in UCD. While there she was involved in Dramsoc and the L&H Debating Society where she rubbed shoulders with current High Court Judges Richard Humphreys and Úna Ní Raifeartaigh. Oisin Quinn, now a senior counsel, was also a contemporary. One night Áine recalls assisting in a world record attempt for the longest debate. The attempt was unsuccessful as the participants

ultimately fell asleep, but Áine recalls making a very incoherent contribution to proceedings in the early hours of the morning! After two years of teaching and a master’s degree in English, Áine followed her sister Carmel into law and did her apprenticeship in Roger Greene & Co. Straight away, Áine remembers that she loved everything about law and she felt really lucky working in an area where she could act for clients on a subject that she felt so passionate about. From the very beginning Áine acted in childcare matters and advising social workers but since then, her practice has now developed to such an extent that Áine is one of the leading experts in the area of mental health and disabilities law, where she lectures to students in UCD, UCC and DCU, not to mention countless solicitor CPD sessions throughout the country. In 2005 Áine was given the opportunity to take over the firm of Roger Greene & Co at a time when the majority of the lucrative HSE work which the firm had done, had been lost to larger Dublin companies. Áine recalls being at the crossroads where a clear opportunity was there for her to chase the work into a lucrative position in one of those big firms. “At the time, people were telling me that I was mad but I thought that this firm had some very good clients that needed to be looked after and serviced properly. We had a huge amount of private clients who I would have really cared for and worried about what was going to happen to them [if I had left], especially clients like the Sisters of the Holy Child of Jesus who remain my clients today. The practice later changed its name to St John Solicitors.” The mention of religious clients and the nature of the work carried out in the firm would make you wonder whether the firm’s name has a religious connotation. Not so, ‘St John’ is the name of a law clerk, Norman St John [recently featured in the Parchment], who has worked at the firm for 70 years. Áine explains with some emotion that Norman had only retired in the past few weeks at the tender age of 86. It is clear that Áine and everybody at St John Solicitors

are immensely close to Norman where he is treated as family. Áine knows that Norman was always “very proud to attend at the Four Court with papers bearing his name” and she and all the staff at St John Solicitors are eternally grateful for everything he has done for them. Having his name over the door is a fitting tribute to the man. While she describes Norman St John as a true hero, she also mentions the likes of Justice Gerard Hogan and Noeline Blackwell as her heroes of the legal world – those who are not afraid to stand up for peoples’ rights. She remembers as a student, watching Barry Scheck in the OJ Simpson trial where she marvelled at the idea of ‘justice and the rule of law’. On a personal level, Áine recalls the influence of her mother on her life and in particular how “she always made me feel like I could achieve anything that I put my mind to, provided I worked hard enough. She encouraged us to have ‘big dreams’ and I know I subscribe to that too”. Áine’s mother died tragically in 2009 in a car accident. Áine has served on the DSBA council since 2009 when Keith Walsh and Stuart Gilhooly took her out one night and explained to her that she should run for the DSBA Council and that they were very keen to have a gender balance on council. “It was a charm offensive” so she decided to follow their advice and has never looked back. She remembers that 2009 had been a difficult time for her as it coincided with her mother’s passing, but she also recalls the generous sympathy, help and support offered by DSBA Council members and colleagues at the time. There is little doubt that Áine has served the DSBA and the profession well since she became involved in legal politics. She talks of the challenges of double jobbing between managing a busy practice where she still runs all of her own files, and being the head of the country’s largest bar association but explains that her partners, James McMahon and HildaClare O’Shea and everybody in the firm are very supportive of her role in the DSBA and the organisation generally. As President Áine has overseen work on the DSBA Legal Services Regulation Act taskforce, and in particular in relation to Section 150 Letters which will shortly replace the ubiquitous Section 68 Letter, thus having an immediate day-to-day impact on all solicitors’ practices. She adds that “the DSBA is also working on submissions to the Legal Services Regulatory Authority on legal partnerships, as opposed to limited liability partnerships” which will be of interest to many in practice. Áine still sits on the Mental Health and Capacity Committee at an important time where the Assisted Decision-Making

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Spring 2017 dsba.ie

Cross Examination

Photography: Bryan Meade

(Capacity) Act 2015 is being implemented, and also contributes regular articles to the Parchment. Áine is very passionate about the position of women in the law and has been involved in numerous initiatives designed to increase female participation at the upper echelons of legal practice. This year she tells me that the DSBA are assisting the Irish Women Lawyers’ Association with an updated Women in Justice survey which was last carried out by Ivana Bacik nearly 15 years ago. Once the initial survey results are in, it is intended that a joint symposium between the DSBA and the Irish Women Lawyers’ praise for her predecessors as DSBA President and in particular, she singles out current Law Society President, Stuart Gilhooly and John “Spanner” O’Malley for their efforts. She reiterates that the work that’s done is voluntary and done not for the benefit of their practices, but to help the profession. Áine is particularly looking forward to the annual conference to Santiago de Compostella which she is currently organising. She feels that the “DSBA conference is always really well supported and is a great opportunity for colleagues to get together in such an informal setting”, as she tries to sell me a ticket! Her time as chair of the DSBA’s Mental Health and Capacity Committee and of the Irish Mental Health Lawyers’ Association has seen her at the forefront of the profession’s input into the review of the Mental Health Act and the developments in the Assisted Decision-Making (Capacity) Act 2015. When we start talking about mental health and disabilities, I have struck a chord with Áine and the passion she has for that work. She recalls one example where she was successful in having a client released from the Central Mental Hospital after spending 23 years there. “He had an intellectual disability and shouldn’t have been there. When I got him out he was placed in a supported residential setting and he would stand patiently inside his door at night waiting for the staff to lock him in. This was what the years inside had done to him.” Áine is also actively canvassing for the repeal of the Marriage of Lunatics Act 1811 which prohibits wards of court from getting married. “I think it is really important to do good and this is why I campaign on issues like this and why I think it is important that we take opportunities to influence legislation for the benefit of those who are vulnerable and marginalised.” When I ask her if she has any advice for those entering the profession in 2017 she

Áine Hynes at a glance

FAVOURITE MOVIE Blade Runner FAVOURITE BAND Spiritualized READING RIGHT NOW Mountaineering in Scotland by WH Murray

says “work hard, be ambitious and take the opportunities as they arise, people are so often afraid to take the opportunities. I was terrified when I was asked to do public speaking for the first time but I managed to get over those fears. Now public speaking and lecturing form a major part of my professional life”.

So what next for Áine Hynes? Apart from continuing to defy all odds in her climbing career, Áine wants to continue the good work at St John Solicitors with the great team who work there. For somebody who is as fearless as Áine, there is no doubt that she will scale the heights – in whatever she turns her hand to. P the Parchment 29

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Solicitors’ Duty of Care and Wills Tim Bracken, BL, advises that the duty of care is increasing and that precision in taking instructions and competence in preparing and having a will executed is crucial

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solicitor performs his duties to his client under contract and it is always a term and condition of the retainer that the solicitor warrants and also accepts that it is his duty of care to the client that he will exercise all reasonable care, skill, diligence and competence in carrying out the service provided. Liability is the same whether the solicitor provides the service on a voluntary basis or for reward (Finlay v Murtagh [1979]IR 249). The solicitor will be guilty of negligence if he fails to exercise due care, skill, diligence or competence in carrying out the service and will be liable in damages for any loss incurred by the client as a result of his actions. The liability for damages is of course limited by the principles regarding the remoteness of damage. Therefore, the question arises, what is the solicitor’s duty to a person who is not his retainer but is named as a legatee in a will? Until relatively recently (the 1980s) it was held that solicitors only owed a duty of care to their clients and in the case of a will, this is the testator. Therefore if an error was made by the solicitor in or about the execution of the will it was thought that only the testator could sue. This never happened since the testator, now dead, could not be deemed to have suffered damage as a result of the solicitor’s error. The position of disappointed legatees was far from certain.

Imposition of Duty of Care of Solicitors to Legatees Change came about in 1980 with the judgment of Sir Robert Megarry in Ross v Cauters (1980 Ch 297) and was quickly followed in Ireland in Wall v Hegarty (1988 ILRM 124). The facts of the Wall case are that the plaintiff who was the executor named in a will (improperly attested and consequently ineffective), sought to recover damages from the defendants, a firm of solicitors retained by the testator to draft his will. The plaintiff claimed the loss of a legacy of £15,000 which he would have received if the will had been operative and for the expense he had incurred in attempting to establish the will. The defendants admitted that the signature of the testator had not been duly authenticated by two witnesses and that

the signature of one purported witness had been added subsequently in the solicitor’s office. The plaintiff sought to establish that a solicitor owes a duty of care to the beneficiaries under a will, he is responsible for drafting and the High Court (Barrington J.) agreed with the plaintiff establishing a duty of care of solicitors to legatees named in the will.

Expansion of the Duty of Care The courts have continued to expand the duty of care and this expansion dramatically increased in White v Jones (1995 2 AC 207) imposing an obligation on a solicitor to ensure that there is not an inordinate delay in or about the execution of a will. In this case a delay of 44 days, due largely to the solicitor, and during which time the proposed testator died unexpectedly, was held to be negligent.

A Solicitor Should not let the Client Attend to the Execution of a Will In Esterhuizen v Allied Dunbar Insurance Plc (1998] 1 ITELR 211) the defendants were not solicitors, but a company providing a will writing service. An employee of the company came to the deceased’s house to oversee execution of the will, but since a second witness was not available he left written instructions on how to execute a will at a later date. The will was invalid when the deceased died, as it was only witnessed by one person. The court held that the defendants were negligent.

“Ball was in the deceased’s court” The extent of the solicitor’s duty of care does not extend to being the nanny of the client. This quote comes from Atkins v Dunn & Baker (2004 EWCA Civ 263) where the deceased never bothered to get back to the solicitor with the draft will for a period of three years prior to death. The court held that “the ball was in the client’s court” and that the failure to send a reminder did not constitute such a fall below the standard to be expected of a competent solicitor as to amount to negligence.

Terminally ill Clients Acceptable timescales for preparing a will for a client who is terminally ill are completely different to a healthy client and in X v Woollcombe Yonge (2001 WT LR301)

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Spring 2017 dsba.ie Tim Bracken BL is a practising barrister and co-author of the Probate Handbook

Probate/Litigation

the deceased was in hospital having chemotherapy for liver cancer. Her previous will left her estate to charity, but she decided to change it to benefit X, a grandniece. On June 25th she called the solicitors. On June 26th the solicitor visited and took instructions for the will; he did not get the impression she was about to die imminently. The probate clerk was away and so did nothing to draft the will until July 1st, on which day D died. The evidence was that the will would have been ready for execution on July 3rd. The judge held that “where there is a plain and substantial risk of the client’s imminent death, anything other than a handwritten rough codicil prepared on the spot for signature may be negligent”. However, he found that death was not plainly imminent for the deceased in this case and that “so far as preparing the will promptly is concerned, I consider that a period of seven days in the case of someone like [the deceased], as she appeared to [the solicitor], was not an unreasonable period”.

will benefit. Solicitors have a duty of care to advise the client to review the will.

Marriage of a Client

• A solicitor should arrange an appointment to see the client as soon as possible after contact in every case. A delay of five weeks can amount to professional negligence. • A solicitor should draft a will as soon as possible upon receipt of the instructions. • If there is doubt as to life expectancy, a solicitor should draft the will during the meeting and have it executed there and then. • A solicitor should attend to the execution of the will, not leave it up to the client. • There is no obligation on a solicitor to chase a client to return a draft will. • If the solicitor is aware that a client is about to get married he must advise him that the marriage will revoke the will. • If a client instructs a solicitor regarding family law he should be advised to review his will immediately. • There’s no obligation on a solicitor to inform children of a deceased regarding Section 117. • Maintain a very accurate and safe system for storing wills. The duty of care is expanding all the time so accuracy in taking instructions and efficiency in preparing and having a will executed is vital. P

A will is revoked by the subsequent marriage of the testator, except a will made in contemplation of that marriage, whether expressed in the will or not (Succession Act 1965 section 85(1)). Therefore if a client informs his solicitor of his forthcoming marriage he should be advised that the marriage will automatically revoke his current will and he should be advised to review his current testament. If he fails to do so he may be liable to a disappointed legatee named in the will (Hall v Myerick [1957] 2 Q.B. 455).

Family Law and Wills A judicial separation or divorce does not automatically revoke a will. Whilst these orders usually extinguish succession rights they do not extinguish rights under an extant will. Therefore a client who is commencing separation or divorce proceedings should be advised to immediately change the terms of the will. It is very common for married couples to have mutual wills making each other universal legatees of each estate. Even after a divorce if the will is not changed, the terms of same will stand and the estranged spouse

No Obligation to inform Children of Section 117 In the case of Rojack v Taylor & Buchalter [2005] IEHC 28, the plaintiff was an executrix in respect of her mother’s estate. She claimed that in addition to the duty owed by the defendants to her as her mother’s personal representative, the defendants owed her an independent duty in her personal capacity as a beneficiary under her mother’s will to inform her of a possible application section 117 of the Succession Act within the relevant time limit and she was subsequently barred from seeking that relief. The High Court (Quirke J) held that the defendants were not obliged by statue or otherwise to notify the plaintiff of her right to make an application under s.117 of the 1965 Act or advise her to obtain independent legal advice.

Conclusions

It is very common for married couples to have mutual wills making each other universal legatees of each estate

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Indiscriminate Data Retention Greg Ryan reports on a recent decision on data retention from the Court of Justice of the European Union which ruled on December 21st, 2016 that EU member states may not impose a general obligation to retain data on providers of electronic communication services

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his ruling of the European Court of Justice follows its judgment of April 8th, 2014 by which the court annulled Directive 2006/24/ EC on the retention of data. The two linked cases were entitled Tele2 Sverige AB -v- Postoch Telestyrelsen, a referral from Administrative Court of Appeal of Stockholm and the Secretary of State for the Home Department v Tom Watson & Others, a referral from the Court of Appeal of England and Wales. There were three intervenors, the Open Rights Group, Privacy International and the Law Society of England and Wales who were permitted to make submissions to the court. The Swedish transposition of the directive imposed an obligation on providers of electronic communications services to retain data indiscriminately. The data concerned is that relating to subscriptions and all electronic communications necessary to trace and identify the source and destination of a communication; to determine its date, time and type; to identify the communication equipment used and to establish the location of mobile communication equipment used at the start and end of each communication. The data which there is an obligation to retain is data generated or processed in the context of telephony services; telephony services which use a mobile connection; electronic messaging systems; internet access services and internet access capacity provision services. This also extended to data related to unsuccessful communications. Interestingly the obligation did not however extend to the content of those communications. The data must be retained by the providers for six months from the date of the end of communication and must then be immediately erased, unless otherwise provided for. The parties who could access the data were the Swedish Security Service and the Swedish Customs Authority in the context of intelligence gathering. There was a condition that the data could only be collected if the measure was necessary in order to avert,

prevent or detect criminal activity involving one or more offences punishable by a term of imprisonment of at least two years. The legislation in Sweden recognises that any grounds supporting that measure must outweigh considerations relating to the harm or prejudice which might be caused to the person affected by that measure. The April 2014 decision (the Digital Rights Ireland Decision) which held that the directive of 2006 was invalid, caused the provider in Sweden Tele2 Sverige to notify the central authority that they would cease immediately to retain electronic communication data and that it would erase any data retained prior to that date. On April 15th 2014, the Swedish National Police Authority (the Rikspolisstyrelsen) lodged a complaint to the effect that Tele2 had ceased to share the data concerned. An order was made by the minister directing the data be shared and Tele2 challenged that in court. That was dismissed in the Court of First Instance and the appeal was brought before the referring court. In the English case, Mr Watson and the others each lodged before the High Court of Justice of England and Wales an application for judicial review of the legality of Section 1 of the English legislation claiming inter alia that that section was incompatible with the Charter and Article 8 of the ECHR. The High Court agreed in the first instance and the Secretary of State for the Home Department brought an appeal to the Court of Appeal, the referring court. The submissions made by the Law Society of England and Wales were of particular interest to lawyers. They argued that the issues raised by the reference impacted directly on the protection of legal professional privilege in the UK. As recorded in the judgment of the divisional court, the claimants, Messrs. Brice & Lewis were particularly concerned about the width of the domestic powers to retain and access confidential communications with their solicitors. They went on to submit that both domestic and EU Law recognised legal professional

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Spring 2017 dsba.ie Greg Ryan is the treasurer of the DSBA. He is principal of Greg Ryan Solicitors and he is chair of the Law Society Technology Committee

privilege as a fundamental right as per the case of A.M. & S. Europe Ltd. -v- the Commission for the European Communities case. This however, was being threatened by the growth in intelligence capabilities which enabled law enforcement and security agencies to both obtain and analyse communications data in a manner that could be extremely revealing about a person’s associations, communication, location and movements. Further, as technology advances ever rapidly, there is a diminishing distinction between the content and the communications data. It has previously been affirmed in November 2014 by the UN General Assembly that certain types of metadata when aggregated, can reveal telling personal information and can give an insight into an individual’s behaviour, social relationships, private preferences and identity. This information would allow a precise picture to be built up about a lawyer’s dealings with clients and vice versa. It would also enable deductions to be made about the contents of such communications and about the legal advice sought and received. Legal professional privilege would also be engaged in a second way. In some cases the very fact that a person has consulted their solicitor is itself confidential and the identity or location of the lawyer’s client or indeed the lawyer may also be confidential. They submitted that it jeopardised the core underlying rationale for legal privilege which is the need to ensure that nobody is inhibited from consulting their lawyer. This also underpins the jurisprudence of both the European Court of Human Rights and of the European Court of Justice. As a matter of EU Law, restrictions on the retention of and access to communications data, should be set out in legislation as was acknowledged by Advocate General Cruz Villalon. However, as the law currently stands in the United Kingdom, there are no such restrictions set out in legislation either in relation to official access to communications data or content data.

Further in November 2015 the United Kingdom Government published a draft of the Investigatory Powers Bill which is intended to repeal and replace the law on access to communications data currently contained in the existing legislation, and the draft bill did not address legal privilege at all. The court on considering the extent of the legislation in both countries, concluded that the data permitted to be taken as a whole is liable to allow very precise conclusions to be drawn concerning the private lives of the person whose data had been retained and in particular, the activities carried out or the social relationships of that person and the social environments frequented by him or her. In particular, the data provides the means to establish a profile of the individuals concerned that is no less sensitive, having regard to the right to privacy than the actual content of the communications. The legislation such as that at issue in both sets of proceedings exceeded the limits of what was strictly necessary and could not be considered to be justified within a democratic society as required by Article 15(1) of the 2002 directive, as reflected in light of Article 7, 8 and 11 of the charter. The court did add a rider to say that the directive did not prevent a member state from adopting legislation permitting, as a preventative measure the targeted retention of traffic and location data for the purposes of fighting serious crime, provided that the retention is limited with respect to the categories of data to be retained, the means of communication effected, the person concerned and the retention period adopted as to what is strictly necessary. In short, a general indiscriminate storage of data is not in line with EU law. Member states may not maintain or readopt rules which are based on or even go beyond the Act which has been annulled on the grounds of its fundamental illegality. The ruling will have serious implications for other countries who have recently reintroduced data retention obligations. P

EU Law

In some cases the very fact that a person has consulted their solicitor is itself confidential and the identity or location of the lawyer’s client or indeed the lawyer may also be confidential

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The Mediation Bill 2017 John O’Regan, BL, summarises the main provisions of the longawaited Mediation Bill 2017 which was published February 9th 2017. When enacted, solicitors must formally advise clients to consider mediation before issuing proceedings

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mediation bill was included in the 2011 Programme for Government following on from the Law Reform Commission’s 2010 report on Alternative Dispute Resolution: Mediation and Conciliation. However, a final bill was never published. In September 2016 a mediation bill was included as priority legislation in this Government’s legislative programme. The bill has now been published and recent public statements suggest that it will be progressed this year. Accordingly, it is important for practitioners (and those involved in litigation in particular), to understand what seems inevitably to be coming into force very shortly. On February 27th 2017, the Law Society invited its members to submit their views or comments on the bill which may be considered as part of the Society’s response to the bill.

What is Mediation? Most practitioners involved in litigation will have had some experience of mediation. Mediation is an attempt to resolve disputes by agreement without going to trial in court (or at arbitration). It is a confidential process where a neutral person (the mediator) helps the parties to try to resolve the dispute. If an outcome can be achieved which is accepted by both sides, then it becomes legally binding. Often the involvement of a neutral mediator and the nature of the process assists the parties in finding common ground. If not, the parties can still go to court or to arbitration, and the mediation is without prejudice to their rights in that regard. Even if unsuccessful, the mediation may have helped to narrow the issues for trial or arbitration. It must be said at this stage that mediation has existed for a long time, and has been successfully used over the years to resolve numerous and significant claims in Ireland. For example the “Mennolly Homes” pyrite litigation - Hansfield Developments & Ors v Irish Asphalt Ltd & Ors. It has been expressly provided for in the Commercial Court rules since 2004 (Order 63 A, r 6(1) (xiii) and in the rules of the superior courts since 2010 (Order 56A). However, the process has never been placed on a statutory footing for civil proceedings generally.

What Changes Does the New Bill Make? Section 14, the Key Provision Perhaps the most important provision in the bill is section 14. Section 14 requires practising solicitors to advise clients to consider mediation as an alternative to court proceedings and it is worth setting out fully.

Practising Solicitor and Mediation (1) A practising solicitor shall, prior to issuing proceedings on behalf of a client do the following: (a) advise the client to consider mediation as a means of attempting to resolve the dispute, the subject of the proposed proceedings, (b) provide the client with information in respect of mediation services including the names and addresses of persons who provide mediation services, (c) provide the client with information about: (i) the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and (ii) the benefits of mediation. (d) inform the client of the matters referred to in subsections (2) and (3) and sections 10 and 11. [confidentiality and the enforcement of mediation settlements] (2) If a practising solicitor is acting on behalf of a client who intends to institute proceedings, the originating document by which proceedings are instituted shall be accompanied by a statutory declaration made by the solicitor evidencing (if such be the case) that the solicitor has performed the obligations imposed on him or her under subsection (1) in relation to the client and the proceedings to which the declaration relates. These are relatively onerous provisions on solicitors, requiring them to advise clients to consider mediation and to explain the benefits of mediation before issuing any set of civil proceedings. Any originating document in any proceedings must then be accompanied by a statutory declaration evidencing the fact that such advice was given. It remains to be seen how these provisions will operate in practice and whether it will suffice for the solicitor to send a letter to the client setting out such information.

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Spring 2017 dsba.ie John Regan, BL, is a practising barrister at the Law Library

Mediation

However, it has been suggested that the provisions requiring parties to consider mediation may be useful in eliminating what may be perceived as an obstacle to mediation or negotiation in practice. Often parties do not want to propose mediation or negotiation because it may be misinterpreted as a sign of weakness, particularly at an early stage of proceedings. The legislative endorsement of the process (and the requirement to consider it before issuing proceedings) may make the parties less concerned about this possibility.

Scope of the Bill Importantly, Section 3 of the bill provides that it shall apply to all civil proceedings apart from certain types of proceedings such as: proceedings under the Arbitration Act; disputes arising within an employment context referred to statutory dispute-resolution processes such as those provided by the Workplace Relations Commission; matters under tax (the Revenue Commissioners had expressed concerns publicly about the scope of the bill, which they stated could delay its collection, enforcement and debt-management functions) and customs legislation; proceedings under the childcare acts or the domestic violence acts. Other exclusions include judicial review proceedings and proceedings against the State in respect of alleged infringements of fundamental rights.

Existing Principles Placed on a Statutory Footing Further, a number of existing rules and procedures in mediation are placed on a statutory footing. Section 6(2) provides that participation in mediation shall be voluntary at all times. Section 10 imposes a general confidentiality obligation on the mediator and the parties. Section 7 of the bill provides that prior to the commencement of the mediation, the parties and the proposed mediator shall prepare and sign a document (an “agreement to mediate�) appointing the mediator and containing information such as the manner in which the mediation is to be conducted; the manner in which the fees and costs of the mediation will be paid; the right of each of the parties to seek legal advice and the manner in which the mediation may be terminated. Section 18 of the bill provides that the signing of the agreement will serve to stop the clock for the purpose of any limitation period under the Statute of Limitations until 30 days after a mediation settlement is concluded or the mediation is terminated, whichever occurs first. Section 11 deals with the enforceability of mediation settlements. Where a mediation settlement is reached, it will operate as a contract between the parties. Subsection (3) provides that a court may enforce the terms of a mediation settlement subject to certain safeguards. It may for example, refuse to do so if satisfied that the mediation settlement does not adequately protect the rights and entitlements of the parties or any dependents, or where a party to the mediation settlement has been unduly influenced by any other party in reaching the settlement.

Sections 12 and 13 – the Mediation Council of Ireland Sections 12 and 13 of the bill provide for the possible future establishment of a body to be known as the Mediation Council of Ireland. Such a body would

undertake the functions set out in the schedule of the bill including the promotion of public awareness on the availability and operation of mediation services, and the development of standards in the provision of mediation services. It would also take on the task of preparing codes of practice and the establishment of a register of mediators. It is intended that such a Council would be funded from fees calculated in accordance with its own rules.

Mediation and the Courts Section 16 provides that a court may, on application by a party to proceedings or of its own motion where it considers it appropriate, invite the parties to the proceedings to consider mediation as a means of attempting to resolve the dispute before the court. Where the parties decide to engage in mediation, the proceedings may be adjourned and the court may extend time for compliance by a party with the rules of court, or make any order or direction necessary to facilitate the effective use of mediation. Section 21 deals with costs and provides that in determining costs, a court may take into account any unreasonable refusal or failure by a party to the proceedings to consider using mediation, and any unreasonable refusal or failure by a party to the proceedings to attend mediation, following an invitation to do so.

Conclusion The bill marks a further development in the trend towards encouraging parties to resolve their disputes other than by litigation. The fact that it is envisaged that solicitors must now formally advise clients to consider mediation before issuing proceedings means that there will almost certainly be more mediations, and this may present an opportunity for lawyers and those with qualifications in mediation. It remains to be seen how the obligation to advise clients will operate in practice, and whether there will be some amendments to the bill before it comes into force. In that regard, those with concerns or views should make them known to the Law Society (mediationbill@lawsociety.ie). P

These are relatively onerous provisions on solicitors, requiring them to advise clients to consider mediation and to explain the benefits of mediation before issuing any set of civil proceedings

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A Senior Counsel Solicitor? Kevin O’Higgins examines how to become a Senior Counsel (SC) presently and how will this change under the new Legal Services Regulatory Act

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ections 171 to 174 of the Legal Services Regulatory Authority (LSRA) recast the process and procedure where a lawyer can become a Senior Counsel. While the Government still grants the patent it will do so in the future on the recommendation of a committee established under the LSRA. The change of significance however, is that for the first time the grant of a patent may be given to a legal practitioner who meets the criteria established under Section 173. By definition, this can be either a barrister or solicitor. Before looking into the details it may be useful to dwell upon the historical landscape.

History The origin goes back to the office of serjeant-at-law which can be traced back to the appointment between 1261 and 1265 of one Roger Owen to represent the King’s interest in the courts of the Lordship of Ireland. Serjeant AM Sullivan, QC (1871- 1959) who defended Roger Casement was the last to hold the title of King’s Serjeant in Ireland. The Office of Queen’s or King’s Counsel was formerly created by patent. This confirmed a right of pre-audience or precedence and was, at the foundation of the State, conferred by the British monarchy. The Privy Council in a case in 1898 considered the status of the office. “It is in the nature of an office under the Crown, although any duties which it entails are almost as insubstantial as its emoluments, and it is also in the nature of an honour or dignity to the extent that it is a mark and recognition by the Sovereign of the professional eminence of the counsel upon whom it is conferred.” In 1922 Irish barristers aligned to the Government of the Irish Free State, were designated as King’s Counsel.

Existing King’s Counsel retained their titles and some continued up to modern times such as RG Leonard, QC until the 1960s. Upon the gaining of independence in 1922 and shortly after the enactment of the Courts of Justice Act 1924, the then Chief Justice Hugh Kennedy agreed with the Bar of Ireland to change the procedure for issuing patents of precedence. From July 1924 the term “King’s Counsel” was replaced by the Irish patents of “Senior Counsel” which were issued by the Chief Justice, although the “Privilege of Patent” continued to fall within the royal prerogative until it transferred to the Executive Council of the Irish Free State (the Government) by the Executive Powers (Consequential Provisions) Act 1937. However, the title “King’s Counsel” continued to be used by many Senior Counsel whether created before July 1924 or after.

What is a Senior Counsel? According to the website of the Bar of Ireland: “Senior Counsel (known as ‘silks’) are the equivalent of Queen’s Counsel in England. They are appointed by the Government from the ranks of Junior Counsel. It is a mark of eminence to be appointed Senior Counsel, and Senior Counsel are expected to be extensively experienced in the practice of law over many years and to be in a position to bring a high level of legal knowledge, skill and judgement to bear in any task in which they are professionally engaged.” The Competition Authority report on the legal profession in Ireland in 2005 concluded that the title of Senior Counsel, as currently awarded, may distort competition and that, if the title is to be retained, it should be opened up to solicitors. It also noted that the title was perceived as a mark of quality for specialisations other than advocacy. It furthermore concluded that the title of Senior Counsel does not achieve the objectives identified by the Bar of Ireland

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Spring 2017 dsba.ie Kevin O’Higgins is principal of Kevin O’Higgins Solicitors, Blackrock. He is a former editor of the Parchment; former President of the DSBA and former President of the Law Society

because the title could not serve as a reliable indication of a higher level of expertise and experience because of the lack of transparent, objective and public criteria. Until the relevant part of the LSRA is invoked the appointment of a solicitor Senior Counsel remains out of bounds. For a barrister to become a Senior Counsel he/she must complete the relevant form which is by way of application for nomination of counsel by the Attorney General. It requires the applicant to have a valid tax clearance certificate and to complete an application probably not dissimilar to the sort of applications a lawyer has to complete for consideration for appointment to the judiciary, setting out in considerable detail his or her areas of practice and experience. It asks him or her to indicate whether they have a capacity to conduct a case in Irish. The application runs to 25 pages. It states that the Government at its discretion, grants patents of precedence at the Bar on the recommendation of the advisory committee consisting of the Chief Justice, President of the High Court, the Attorney General and the Chairman of the Bar of Ireland. Most certainly in the new world of the LSRA there will have to be a role for our Law Society in the selection process. The current application lays down the various competencies required to have been demonstrated consistently such as: • An exceptional capacity for court advocacy; • Substantial advocacy experience in higher and appellate courts; • Professional independence and adherence to the highest ethical standards required of an advocate practising in the courts; • Tax compliance; • A thorough knowledge of the law in any area in which the barrister holds himself or herself out to be competent in practice and a very high degree of expertise in the area of professed speciality; an ability to present persuasive and sophisticated arguments, to respond to cases and trials as they unfold and to deal with complicated legal and factual issues at short notice; • Leadership, independence of mind and sound judgement together with an ability to stand up courageously for the client and to advance an argument that might not be popular; a capacity to work with the client and other lawyers and to maintain integrity, courtesy and honest behaviour in all professional dealings. It requires the barrister to have at least ten years experience and to nominate three persons from whom a reference can be requested (at least two of whom should be lawyers) and to provide with their application, two references from persons holding judicial office. It enables the advisory committee to be entitled to interview candidates. The advisory committee may make such enquiries in confidence of such persons as it deems fit as to matters bearing upon the suitability of the applicant. The call to the inner Bar normally takes place once a year in the Michaelmas term on a date to be fixed by the Chief Justice. It requires that the application forms be completed and received by the Secretary General to

News

the Government by December 21st in the year prior to the intended year of call. The advisory committee then issues its recommendations to Government on or before April 30th in each year. It precludes canvassing.

Conclusions The demography of the cohort of Senior Counsel in the Bar indicates that there are 329 from a barrister pool of circa 2,100. The gender split is 84% male, 16% female, yet the overall gender split in the Bar is presently 48% female with current intake of new calls to the Bar coming in at nearly 60% female. Some 65% of “silks” practise mainly in the personal injury area. What appetite might exist amongst our profession for such a leap into the unknown – a veritable vipers’ nest where a solicitor colleague would soon find out that his or her new “colleagues” may not be as collegiate to him or her as they might be to their own and this may place him at a disadvantage. Certainly, there are solicitor colleagues out there more than capable of fulfilling the criteria. We only have to draw on the advocacy excellence of the likes of then solicitor Michael Peart to realise the talent and ability in our midst. It is also important to stress that a scholarly knowledge of the law, its practice and application before the courts ought not be the sina qua non. To draw from the 2003 submission from our neighbouring Law Society where the argument was made that proven expertise in opinion-driven work such as tax (particularly stamp duty and CAT) and of course conveyancing, are all areas where the solicitor side have always excelled. We all know of the dearth of counsel who know anything about conveyancing. Yet we have always, and certainly in recent times, excelled in intellectual property (IP) and child law, to name but a couple. Obviously there will be many bumps along the road. It is reputed that former colleague and Minister for Justice, Alan Shatter sought in 2001 to become an SC, but was firmly rebuked by the Bar of Ireland in correspondence that I have seen. Some see Section 173 as being a Shatter creation and perhaps a retaliatory provision drawn out of ministerial pique. Maybe so, but perhaps a more objective assessment is to acknowledge that the provision was doing no more than the Competition Authority was heralding in its 2005 report. We have exceptional colleagues out there who perhaps work in niche areas and have a proven expertise. It may be more amenable to someone who has big firm back-up where effectively there are “trial lawyers” within the practice akin to the American system. There is at least one such firm that already has a silk in its ranks. The difficulty however, (at least from a marketing perspective) is whether that sort of service could be truly independent. Conversely, the most effective tool of the Bar of Ireland is that it remains an independent referral Bar. However, what is not in doubt is that the LSRA is a game changer. The SC provisions are a small part of that and add to the tapestry that “all is changed, changed utterly”. P

The demography of the cohort of Senior Counsel in the Bar indicates that there are 329 from a barrister pool of circa 2,100

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Ian Feighery is a qualified Financial Advisor with Summit Life & Pensions Ltd. More information can be found on the website www.summitlife.ie

Tax Saving Estate Planning Ian Feighery outlines some ways in which potential Capital Acquisition Tax (CAT) liabilities can be avoided when transferring assets

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AT comprises two separate taxes – a Gift Tax payable on lifetime gifts and an Inheritance Tax payable on inheritances received on a death. In the past “estate planning” was something we believed to be only for the elite, very few wealthy individuals and their families in our society. However, this is no longer the case. If your clients are planning to leave their house, savings or any other assets to their family, you, as their solicitor, can help make sure the real value of these assets is not reduced by Inheritance Tax.

Some Facts & Figures “Ireland’s Inheritance tax is more than three times the international average”, according to global accountancy network, UHY. In 2015 the estimated amount taken through CAT was €400m which shows how significant a liability it really is.

Below are the current Inheritance/Gift Tax Thresholds per group: Group

Relationship to Disponer

Group Threshold from 12/10/2016 €310,000

A

Son/Daughter

B

Parent/Brother/ Sister/Niece/ €32,500 Nephew/Grandchild

C

Relationship other than Group A or B

€16,250

This is the total threshold allowable within each Group (includes all gifts and inheritances received since 5/12/1991)

CAT Changes Over the Years To show exactly what effect the reduction of the thresholds (group A only) and the increase in the CAT rate has had from 2008 to 2017 please see below: 2008

2012

Tax Rate

20%

30%

33%

Group A Threshold

€521,208

€250,000

€310,000

€500,000

Nil

€75,000

€62,700

€1,000,000

€95,758

€225,000

€227,700

€1,500,000

€195,758

€375,000

€392,700

€2,000,000

€295,758

€525,000

€557,700

Inheritance Amount

2017

As you can see from the above table, the percentage of the estate that is lost through CAT is under 15% in 2008 and nearly a staggering 28% in 2017!! There is talk that the group A threshold might increase back up to €500,000 in the next couple of years which will make it a little less punitive. The good news is that there are solutions to potential CAT liabilities that can be put in place to help with these liabilities. These include:

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Spring 2017 dsba.ie

Probate/Taxation

• Life assurance relief Section 72 policy (formerly Section 60) • Section 73 savings policy (gift tax savings policy) • Life of another, life assurance policy (cohabiting couples) • Family partnerships • Business relief • Agricultural relief • Favourite nephew relief There are quite a number of possible solutions as mentioned above. However, I will only focus on the following in more detail: • Section 72 life assurance policy • Section 73 savings policy • Life of another, life assurance policy

Section 72 Policy (S.72): Inheritance Tax Provision This is a life cover policy that is put in place by the individual(s) who are passing on their estate on death. The benefit of the policy is paid out on death and once the proceeds of the plan are used for the payment of inheritance tax by the beneficiaries, Revenue will not seek to tax the plan proceeds (sits outside of the estate). A plan effected under Section 72 CAT Consolidation Act, 2003 effectively gives your client an option. Rather than letting tax legislation decide how their estate will be distributed – they can pass on their assets in the way they wish - and plan for the tax consequences. One of the conditions of putting in place a S.72 policy is that the premiums have to be paid by the life assured. One way of sharing the cost of this premium is for the children, who will most likely benefit from the proceeds, to help with the cost. They could gift their parents up to €250 per month each (small gifts exemption) to help with the cost of maintaining this policy. Any benefit amount from this type of policy that is not used to pay a CAT liability will be included in the estate of the deceased and possibly subject to CAT.

Section 73 Policy (S.73): Gift Tax Provision This is a savings plan which receives relief in S.73 of CAT consolidation Act 2003. This allows people to plan for the payment of gift tax in a tax efficient way. If a life assurance savings plan is put in place to provide for the ‘relevant’ tax, Revenue will not charge CAT on the plan proceeds if the money is actually used to pay gift tax. The benefit of using a ‘qualifying’ life assurance savings plan to fund the payment of gift tax is that, the proceeds when used to pay an individual’s beneficiaries gift tax bill, will not increase their gift tax liability. Whereas, if the individual gives their beneficiaries additional money to pay the gift tax bill from their deposit account, this will be seen as an additional gift, and will increase the beneficiaries’ tax bill.

Conditions to be met to Qualify • Policy must be written/endorsed as a S.73 policy from inception • The person giving the gift must pay the premiums • The premiums have to be paid for a minimum of 8 years One big advantage of this type of policy is that the owner of the policy does NOT have to gift the proceeds if they do not need or want to. Therefore, they control the policy at all times. Writing it as a S.73 policy allows them options in the future.

Life of another, Life Assurance Policy (Cohabiting Couples) Our society is changing and increasing numbers of people are living together in “non-married” situations. Unfortunately, one downside to this is that on death, when in a cohabiting relationship, any inheritance received by the surviving party, would be viewed in the eyes of revenue as coming from a stranger. This could lead to a potential CAT liability as the CAT threshold for a stranger is currently €16,250. Therefore, if one was left a property, life assurance policy etc., there could be quite a large CAT bill to be paid. One very simple way to avoid the above would be to put in place a life assurance policy and structure it as follows: • Put in place a life assurance policy on the individual (life assured) who would be leaving the asset • The person that would be receiving the proceeds of this life assurance policy is put as the policy owner on the application. This is possible to do as there is an “insurable interest” between them (cohabiting couple) • As the policy owner, they would be required to pay the premium for the policy from their own bank account. This part is extremely important as the premium has to come from their own account to ensure no inheritance tax liability on the benefit • If this person is a dependent, their partner can use the small gifts exemption (up to €250 per month) to lodge money into the other partner’s account which they can use to pay for the premium of the policy • As they are now the legal owner and payer of the policy, any benefit that is paid out would go to them (surviving partner) completely tax free

Rather than letting tax legislation decide how their estate will be distributed – they can pass on their assets in the way they wish - and plan for the tax consequences

Conclusion As you can see from the above, there are a number of ways in which your client can be protected against potential CAT liabilities when transferring assets. With the price of property increasing sharply over the past few years, many more individuals will find themselves with a CAT liability due to the inheritance tax threshold levels being low. This will lead to a big chunk of inherited assets being lost to tax with the high rate of CAT currently at 33%. One of the most important things we can do for clients is to make them aware that A) there is potentially a CAT liability in the future for their family and B) that there are solutions available once plans are put in place in time. Proper estate planning will be able to help identify this exposure early, which in turn should allow plenty of time to come up with the best and most suitable solution. Like everything in life, personal circumstances change rapidly along with legislation so it is vitally important to review regularly. P the Parchment 39

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Revenue Appeals Process A significant change was implemented last year with respect to the appeals process available to taxpayers when they disagree with any assessment raised by Revenue. Julia Hussey provides an overview of the new procedure and highlights a number of issues of concern

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he Finance (Tax Appeals) Act 2015 commenced in March 2016. It introduced new measures and processes for tax appeals. It also further enhanced certain old processes that are to be retained. This article is intended to draw focus to some of the more notable changes in legislation and to highlight the continuing need for proactive interaction with tax and legal advisers in ensuring an opportunity to challenge tax assessments is not missed.

New Appeals Body As part of the changes a new body, the Tax Appeals Commission (TAC) was created. This body was established with a view to strengthening the independence of the appeals process and to remove the potential for biased adjudications as a result of the involvement of Revenue in the appeals process. The TAC has published the rules of the organisation and these are to be reviewed on an ongoing basis. It is intended that the TAC will facilitate appeal proceedings which are independent, fair and accessible overall. The overriding intention in establishing the TAC is to process and determine appeals as efficiently as possible without the formality of a court setting.

New Procedure The time allowed for making an appeal has been standardised at 30 days after the notification of the assessment and it is possible to submit the notice of appeal online through the website, www.taxappeals.ie. On the initial notice of appeal, a significant amount of information is required to be included and with only 30 days to decide whether or not to appeal, gather the

information and submit the appeal, time is of the essence. The notice must include the grounds of appeal, the relevant legislation and the supporting case law. Failure to identify a ground of appeal at this stage could limit the scope of the appeal at hearing. While there is an option to apply to include an additional ground of appeal at a later stage, it must be shown that it could not reasonably have been stated in the notice at the time it was submitted. Once an appeal has been accepted, the TAC directs the preparation of a statement of case by the taxpayer and may also request one from Revenue. This statement should set out the facts, list of documents to be relied on, details of any witnesses, statutory provisions to be relied on, details of any relevant case law and an estimation of the duration of the appeal. Again, the timeframe to comply with this direction can be limited, quite often to 28 days. However, there is the option of requesting an extension to the timeframe outlined in the direction within 14 days. Many of the appeals in the old system have or will be transitioned into the remit of TAC, so taxpayers and advisers have started to receive requests for statements of cases. The commissioners of the TAC have sole discretion for accepting or refusing any application for appeal. In the event an application is refused, the only option available to an aggrieved taxpayer is to judicially review the decision of the commissioner in the High Court. This represents a marked change from previous procedures where it fell to Revenue to determine whether or not an appeal was valid. Thereafter, the TAC requests the preparation and exchange of legal submissions by both the taxpayer

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Spring 2017 dsba.ie Julia Hussey is a solicitor and chartered tax adviser in the private client department at Deloitte

and Revenue. This is usually directed to be prepared sequentially with the taxpayer providing their submissions first and Revenue responding to the arguments within their own submissions. Prior to the main hearing, there will be a preliminary hearing or case management conference in order to capture the issues to be heard and deal with any preliminary applications. Once the TAC has heard the appeal it must issue a determination within 90 days of its decision. The legislation now calls for all determinations of the TAC to be anonymised and made available on their website. Several determinations have now been published online and vary from personal tax matters such as the applicability of income tax and succession planning reliefs to VAT obligations. The publication of these determinations going forward will bring improved certainty to the interpretation of the law for practitioners and taxpayers alike. A further development is that by default, TAC cases are to be heard in public, however there is an option for a case to be held in private. There is also no longer a need to physically attend for testimony and a case can be presented to the TAC both orally and in writing. There is also scope under the new legislation for Revenue to give evidence in support of increasing the scope of their assessment. Previously, a taxpayer had recourse to a rehearing in the Circuit Court in the event of an unfavourable decision. Under the new legislation, there is no longer a right of rehearing available to taxpayers and thus, in the event of seeking a further appeal, the only option now is for a taxpayer to bring a costly High Court challenge on a point of law.

Taxation

This significantly reduces the scope for taxpayers to engage in the legal system as a means of defending their position.

Point of Law Challenge The procedure for bringing a challenge has also been amended and now a case stated for the opinion of the High Court must be prepared by the commissioners of the TAC. Further, it must be prepared in conjunction with the parties to the appeal, and any such appeal must be brought within three months of determination. While the taxpayer has an opportunity during this process to put forward responses to the draft case stated as prepared by the TAC, they have no avenue to appeal what is included in the case stated to the High Court.

Conclusion While the new procedures may attempt to introduce enhanced efficiency and independence of process, there is an argument that the taxpayer is being denied any real access to justice in circumstances where a decision of the TAC may not be fair, just or well assessed. In the absence of recourse to the Circuit Court, there is the potential for erroneous decisions of the TAC to go unchallenged. It is not feasible for the majority of taxpayers to bring a High Court judicial review or challenge in circumstances where they feel they are aggrieved; and it is arguable that in the vast majority of cases, most taxpayers will be disinclined to pursue a matter any further for fear of being unsuccessful. Thus, we would highlight the need for proactive consultation with your tax and legal advisors where an appeal is being considered. It is vital going forward that the strongest possible case be made to the TAC in order to eliminate the potential for future costly litigation. P

The legislation now calls for all determinations of the TAC to be anonymised and made available on their website

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

Being Good is Not Enough Flor McCarthy takes an insider’s look into how we practise and says that if we want to have successful practices, profitable futures and indeed, a sustainable profession, we need to communicate to the marketplace

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ovelist Donal Ryan recently went public on his need to return from full-time writing to his job in the Civil Service. If you practise in employment he may be known to you from his role in the Workplace Relations Commission. The general thrust of his comments were that he simply wasn’t able to support himself and his family in the manner that he wanted, from the sporadic income that writing provided and so he returned to the security of full-time, pensionable employment. And Mr Ryan is a very good writer. His first book The Spinning Heart was excellent, won the Guardian First Book Award and was longlisted for the Man Booker Prize. His subsequent works have been of similar standard or better. So the fact that such a talented writer as Mr Ryan was forced to return to full-time State employment to be able to raise his kids and pay the mortgage has been the source of some negative comment as an indictment of the publishing industry in that it does not pay writers enough or provide artists with the commercial support that they need to incentivise the creation of new works. Perhaps, but I think this highlights something else entirely. Being good is just not enough. In fact, if you want to get anywhere with anything,

being good is a given. That’s just your ticket into the game. You’ve got to produce work of excellent quality, no matter what you do. Writing, legal services, whatever. And of course, as lawyers a lot of what we do involves writing. Not perhaps the type of gripping fiction that Mr Ryan excels at (though some might say some extraordinary works of fiction have been created in the name of legal writing), but writing none the less. And all serious writers know that waiting for the muse isn’t going to get much written. Writing consists of getting the seat of the pants into direct contact with the chair in front of the desk and doing the actual work, no matter what you feel like, on any given day. I’m sure Mr Ryan has much to say on the practical reality of this also. He certainly could tell you a thing or two about the need for self-belief and perseverance; his first two books were rejected 47 times before being published. But the point is that producing quality work on its own won’t be enough to cut it. You’ve also got to have a sufficient number of people who want what you produce and are ready, willing and able, to pay you well for it. Then you’ve got to give them a good reason to choose you ahead of every other available alternative. And then you’ve got to make them aware of it. In the publishing world this means schlepping to book festivals, readings, events and generally hitting the circuit. It means going on social media,

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Spring 2017 dsba.ie

Practice Management

doing endless promotional tours, media interviews, guest slots. All dreadfully tedious and a million miles removed from what a good writer would like to be doing: actually writing. (And let me be clear, I am not suggesting Mr Ryan didn’t do any of these things or didn’t do them well, I have no idea, I’m just using his case as an example to make a point.) Indeed, if we look at those who do seem to succeed at getting paid extraordinarily well for what they do in the creative arts: big name movie stars, the best paid do publicity extraordinarily well. Just consider it for a moment, some of these people are fabulously wealthy and presumably don’t need the money and have many things they’d rather be doing on a Friday night than shooting the breeze on Graham Norton’s couch. Yet they do it, because that’s how business works and how movie tickets and books get sold. Yet we kid ourselves into thinking that this doesn’t apply to us. We’re not creative writers (well, we’re not supposed to be) and we’re not movie stars. We provide very sober and serious legal services, so we shouldn’t have to prostitute ourselves by promoting our wares, people should choose us because we’re good at what we do. If only. The point is if we are good at what we do, and we can help people, and we know that people have better outcomes with our help than without it, then we

actually have an ethical duty to make sure that people are aware of what we do and how we can help them. I mean how else on earth are they going to find out if you don’t tell them? Just being a good lawyer and doing a good job for your clients isn’t good enough. This is a given and is what you’re paid to do in the first place. The other essential thing that we have to do if we want to have successful practices, profitable futures and indeed a sustainable profession, is to make it our business to communicate clearly to the marketplace. This means outlining our services and explaining what we do in terms of the benefits we provide to the people we want to help in our businesses. We’ve got to do this constantly and proudly and with a confidence that is based on a genuine belief that what we are doing is beneficial and socially useful – that it is the right thing to do. Because we know it is, but we are conditioned not to draw attention to the fact. We are told from a very early age that self-praise is no praise, that we should not be too pushy, that we should be discovered on merit rather than seek to thrust ourselves into the limelight. Well, ask Mr Ryan about being discovered. If he’d quit on his 47th rejection he’d never have left the Civil Service in the first place. And our literary landscape would be an awful lot poorer as a result. P

Indeed, if we look at those who seem to succeed at getting paid extraordinarily well for what they do in the creative arts: big name movie stars, the best paid do publicity extraordinarily well the Parchment 43

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Offshore Matters The term “offshore” is often associated with the super rich, deliberate tax evasion and Ansbacher accounts. Brian Broderick warns of the upcoming disclosure deadline which spells dramatic tax hikes from May 1st

T

he penalties applied by Revenue to undeclared income and/or gains which are linked to offshore assets are set to increase significantly after April 30th 2017 and Revenue has sent letters to all taxpayers that filed an income tax return for the 2015 tax year, advising them of the change. The information coming to Revenue includes: • details of foreign properties (ownership, income and gains), • employment income, • directors’ fees, • life insurance products, • investments and pensions, • bank accounts. Revenue will be receiving details of account balances, income received, sales proceeds on disposals and account closures. This information can be used to crosscheck that income and gains have been fully returned by taxpayers and to target non-compliant taxpayers for audit or investigation. Irish taxpayers who have rental properties abroad and are paying foreign tax on the income, but who have not included the rent in Irish tax returns, should check if there is any additional Irish tax due to Revenue (after allowing a credit for the foreign tax). A qualifying disclosure should be made by April 30th 2017 if there has been a shortfall in the tax paid. In practice if no steps are taken by the taxpayer, Revenue is likely to raise queries with the taxpayer at some point in the future. Any person with foreign investments or assets should be satisfied that all tax obligations in Ireland have been met, and if they have not, the option of making a voluntary disclosure by April 30th 2017 should be considered.

The Old Regime Currently a taxpayer can make an unprompted qualifying disclosure to Revenue in relation to any

unpaid tax liability, and to make a qualifying disclosure the taxpayer must forward details of the liability together with payment of tax and interest to Revenue. There are incentives for making a qualifying disclosure to Revenue that include reducing the penalties due on unpaid tax, and agreeing not to publish or prosecute tax defaulters. These are intended to encourage taxpayers to come forward. Revenue considers the concealment of foreign income and assets to be “deliberate behaviour”. This means that the lowest penalty applicable to a qualifying disclosure of an offshore issue is 10%. A taxpayer who is in a position to satisfy Revenue that the category of behaviour that applies is “careless behaviour with significant consequences” may be eligible for a penalty as low as 5%. The lowest penalty available (3%) only applies where a qualifying disclosure is made, the taxpayer fully co-operates with Revenue and the category of behaviour that applies is “careless behaviour without significant consequences”. Consequences are considered “significant” where the tax underpaid exceeds 15% of the tax correctly payable.

The New Regime Finance Act 2016 amended the voluntary disclosure provisions to remove these benefits for offshore matters after April 30th 2017 on the basis that Revenue no longer needs to incentivise taxpayers if they will be getting information directly. From May 1st 2017 increased penalties will be applied to any tax payments due and relating to offshore matters. Taxpayers will not be entitled to make a qualifying disclosure in respect of any outstanding liability relating directly or indirectly to: • a bank account held or situated outside Ireland; • income or gains arising from a source, or accruing, outside Ireland;

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Spring 2017 dsba.ie Brian Broderick is a tax practitioner at O’Hanlon Tax Ltd

• property situated outside Ireland. In addition, no protection from publication or prosecution will be available. The benefits of making a qualifying disclosure by April 30th 2017 are that the tax penalties can be minimised and publication and prosecution can be avoided. Penalties as low as 3% can be negotiated with Revenue if an offshore disclosure is made by the April deadline above, but it is likely that Revenue would seek penalties of at least 75% if a disclosure is made on or after May 1st 2017. There are two main scenarios which can arise that would result in a tax liability relating to offshore matters: 1. Funds are transferred abroad to hold in a foreign bank account or to invest in foreign assets without paying the Irish tax due on the income or gains, e.g. untaxed Irish trading income. 2. Income or a gain arising on foreign assets is not returned to the Irish Revenue, e.g. rental income from a foreign property. In the case of scenario 2, it may be that the income or gain is also taxable in the foreign jurisdiction and a tax credit may be available in respect of the foreign tax paid.

Offshore Disclosure Example The differences in the overall liability that could be due to Revenue on an offshore asset is best illustrated by way of an example. Mary and Andy run a successful business and having paid off the mortgage on their Dublin property, they decide to sell it and move to Kerry. After purchasing a small property in Kerry, Andy and Mary purchase a holiday home in Florida. They then spend circa eight weeks a year in Florida and the property is rented for the balance of the year. Andy and Mary do not return the rental income

Taxation

from the US property in Ireland as they file a US tax return. However, no tax is paid in the US, as the US allow a deduction for the capital cost of the property. The net rental income calculated for Irish income tax purposes over the three years from 2013 to 2015 is €82,000. The marginal rate of tax for Andy and Mary was 55% (income tax, PRSI, and USC). • The additional tax payable is €45,100. • If Andy and Mary make an unprompted voluntary disclosure prior to April 30th 2017, the penalty is likely to be 10% (€4,510). • If Andy and Mary make a disclosure on or after May 1st 2017, Revenue is likely to seek a penalty of at least 75% (€33,825). • The additional cost to not making a disclosure before April 30th 2017 would be circa €29,315. This calculation does not include the additional interest which will continue to accrue until the tax liability is paid (circa €10 per day). It should be noted that in addition to the increased penalties the taxpayer may be published or prosecuted by Revenue, if the disclosure is made on or after May 1st 2017.

Conclusion Taxpayers should consider their tax position prior to May 1st 2017. If there are any issues which may give rise to unpaid tax liabilities which relate directly or indirectly to offshore assets, income or gains, it is advisable to seek advice with a view to making a qualifying disclosure before May 1st 2017. Revenue is expected to take a hardline approach in applying the deadline of April 30th 2017, and in refusing to accept qualifying disclosures on or after May 1st 2017. From this date, reduced penalties will no longer be available and the overall cost on an unpaid tax liability linked to offshore matters will rise dramatically as a result. P

Significant changes and restrictions are coming into effect for any corrections that relate to matters outside the Republic of Ireland, or ‘offshore matters’ … The changes coincide with increased international co-operation whereby Revenue gets more and more information automatically from other jurisdictions. If this affects you … you should come forward and correct your tax returns by making a ‘qualifying disclosure’ before May 1st 2017. Revenue February 17th 2017

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The Ryan Report -

EU and Technology News EU SECURITY – THE NEW EU PNR DIRECTIVE The Passenger Name Record (PNR) directive 2016/681 was published on 27th April, 2016. In short, the data of all air passengers, both EU citizens and third-country nationals, (including those flying between Schengen countries) will be transferred to specialised intelligence units to be analysed in order to identify persons of interest and aid in detecting terrorist offences and other serious crimes. This throws up obvious privacy and citizen concerns and this directive will undoubtedly end up before the Court of Justice sooner rather than later. After the surge in terrorism in 2001, the US led the way in examining the movement of passengers, border security and upping the fight against international terrorism. Included in this was the adoption of legislation obliging any airline flying into the United States airspace to provide their domestic authorities with the data on the passengers. Included in this data is the name on the passport, means of payment, travel arrangements and contact details. This model was internalised in the EU in three agreements with the US, the first in 2004 which was struck down by the Court of Justice in 2006, and two subsequent agreements in 2007 and 2012. The entry into force of the Lisbon Treaty marked the first proposal for a framework decision, and a revised proposal was released in 2011. It was however, greeted with great scepticism by the major EU bodies including the European Data Protection Supervisor, the Fundamental Rights Agency and the Article 29 Working Party, who argued that it failed to respect the principles of necessity and proportionality and eventually the proposal was rejected by the European Parliament on fundamental human rights grounds. The PNR project was resurrected after the Charlie Hebdo attack in January 2015. At an extraordinary council meeting immediately after the Paris terrorist attacks, the Council reiterated “the urgency and priority to finalise an ambitious EU PNR before the end of 2015”. The directive places a duty on airline carriers operating international flights between the EU and third countries to forward the PNR data of all passengers to the Passenger Information Unit (PIU)

established at domestic level for this purpose. Once transmitted the data will be stored and analysed by the PIU for the purposes of identifying persons who were previously unsuspected of involvement in terrorism or serious crime. Focusing on prevention is central to the directive. The PIU will respond to requests by national authorities to access the data on a case-by-case basis. In theory processing will not take place on the basis of sensitive data revealing race, ethnic origin, religion or belief, political or any other opinion, trade union membership, health or sexual orientation, etc. The initial retention period is six months and thereafter as approved by an appropriate judicial authority. Clearly the PNR system poses considerable challenges to the protection of privacy and data protection rights. The directive allows for the systematic blanket and indiscriminate transfer, storage and further processing of a wide range of personal data of millions of airline travellers. The right to privacy as set out in Article 7 and 8, as emphasised in the Digital Rights Ireland case has long been established within the European Union, but the interference with the right to privacy and data protection in pursuance with Article 7 and 8 as a result of this directive is clear. On the basis of the data collected which includes biographical information, credit card details and contact information, the law enforcement authorities will be able to compile a complete profile of travellers’ personal and private lives. With regard to the periods of retention, the EU institutions do not have a clear understanding of what constitutes proportional retention period. The 2007 proposal envisioned a retention period of five years after which time, the data will be de-personalised and kept for a further eight years. The 2011 proposal prescribed an initial retention period of 30 days and thereafter five years. In 2015 the Council called for an extension of the initial retention period to two years followed by a further three years of storage. By adopting US standards, the EU puts the privacy of individuals under threat. While mass surveillance practices are now being justified as a result of the terrorist attacks, the swing away from individual rights is not to be welcomed.

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Winter 2016 dsba.ie Greg Ryan is programmes director of the DSBA and he is chair of the Law Society Technology committee

EU/Technology

THE NEW GENERAL DATA PROTECTION REGULATION (GDPR) – HOW DOES IT AFFECT SOLICITORS? The GDPR was published on 4th May in the official journal of the European Union with a proposed implementation date of 6th May 2018. Even though it is a regulation, important national differences will arise that will affect how lawyers in different jurisdictions work. For the purposes of this article, we will examine the main new compliance measures that we will need to take to fulfill the requirements as set out in the regulation. The first item that solicitors should be aware of is the new security breach notifications. According to Article 33, a law practice acting as a data controller must notify any personal data breaches to the supervisory authority without undue delay, and in any event, not later than 72 hours after having become aware of it. (There is an exception where the data breach is unlikely to result in any harm to the data subject.) If the firm is acting as a processor, it must also notify the controller without undue delay after becoming aware of a personal data breach. The notification has to contain, among other things, the nature of the data breach, the likely consequences of the breach and the measures taken to mitigate the possible adverse effects. The notification can be made in different phases, not necessarily all at once. Furthermore, the firm is required to document such breaches in a sufficiently detailed manner, so that the supervisory authority can verify compliance with the breach notification. The practice will also have to set down internal procedures for handling data breaches and to establish a mechanism for notification. In certain high risk cases the practice is also required to notify directly their clients (under Article 34), a prospect which no doubt will terrify colleagues. This is a direct divergence from the old directive, 95/46/EC, which did not oblige data controllers to report data breaches to the supervisory authority. As for future regulations, under the GDPR, Article 70, the European Data Protection Board will also issue guidelines, recommendations and best practices into the future. Article 17 includes the right to erasure (otherwise known as the right to be forgotten), which means

that data subjects have the right to require of the controller the erasure of personal data concerning them without undue delay. Undue delay is not defined, but this obviously will cause problems in the future with the requirement of solicitors to retain such adequate records as are necessary for the maintenance of their files and their responsibilities to the Law Society, the Revenue Commissioners and their clients. The third requirement is that the law firm must appoint a data protection officer (DPO). This requirement arises if the data processing activities of the firm involve regular and systematic monitoring of data subjects on a large scale, or the processing of special categories of data on a large scale. The regulation imposes new obligations on the DPO such as monitoring compliance with the regulation, with other European Union or member state data protection provisions, obligations of awareness raising and training of staff involved in data processing operations and related audits. The fourth requirement is under Article 35 which requires impact assessments. Where a type of processing is likely to result in a high risk to the rights and freedoms of natural persons including any processing on a large scale of special categories of data, the controller must carry out an impact assessment. Strangely, there is an exemption for sole practitioners but nonetheless a large law practice could still be required to deliver such an impact assessment from time to time. The fifth requirement is data portability. Data subjects have a right to obtain from the firm a copy of their personal data that has been processed and the regulation requires that the data be handed over in a structured, commonly used and machine readable format. These very generic requirements are open to a considerable range of interpretation. Finally, the data controllers have an obligation to be able to track recipients of personal data pertaining to a specific person. This is an obligation which can only be met when certain changes are made to the IT systems of law practices which will present its own challenges in the future. the Parchment 47

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In Practice

Litigation NEW COURT OF APPEAL PRACTICE DIRECTION A new practice direction is being implemented which applies to all civil appeals in which submissions or books of appeal are due to be filed on or after February 1st 2017. In simple layman’s terms, if one goes on to one’s search engine, be it Google or otherwise and types in CA06

NEW PRACTICE DIRECTION ASSAULT AND TRESPASS In respect of High Court assault and battery cases and trespass on the person, these are now to be set down in

NEW PRACTICE DIRECTION COURT INTEREST RATES Please note that the new court’s interest rate is 2%. This will apply to all judgments henceforth. The previous “courts interest” rates of 8% and 11% are now gone.

(space) submissions, the entire practice note will come up immediately on your computer as signed by Mr Justice Sean Ryan on December 20th 2016. The main change is that books of appeal have to be in now within four weeks instead of two. There are limitations in relation to submissions in terms of wording. The details are contained on the website. Barra O’Cochlain , DSBA Litigation Committee

Dublin only. In respect of any which have already been set down outside of Dublin, either party may apply to the Deputy Master to have them heard in Dublin. Barra O’Cochlain , DSBA Litigation Committee

Any judgments in respect of which the interest rate of 8% applied to will not be reduced retrospectively. Any interest accrued will remain. The date of judgment will be determined by the judgments section of the central office or the date of judgment where that applies. Barra O’Cochlain , DSBA Litigation Committee

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Spring 2017 dsba.ie

DSBA News

DSBA Present Charity Cheque to Dublin Lord Mayor

DSBA President Ă ine Hynes recently met with the Lord Mayor of Dublin, Brendan Carr at the Mansion House and presented him with a cheque for the Mansion House Fuel Fund. The Mansion House Fuel Fund was set up by Sir John Arnott in 1891. It was originally set

up to assist the needy during the cold winter. The fund distributes cash grants through a number of charitable societies without any distinction of creed. It was one of the first truly ecumenical charities in Dublin. Some of the charities whom the Mansion House

Fuel Fund assists during the winter months include the Dublin Simon Community, St. Vincent De Paul, Abbey Presbyterian Church Hamper Fund and St. Thomas the Apostle Parish, Jobstown, Tallaght.

Civil Liability (Amendment) Bill 2017 One of the main provisions of the bill is to provide for periodic payment orders to be paid to individuals who have suffered a catastrophic injury. Section 5 of the bill proposes that sections 89 B and 100 Taxes Consolidation Act 1997 be amended so as to exempt such payments from income tax. When we saw this bill we wrote to the Minister for Justice and Equality raising concerns that the bill, as initiated did not propose to exempt periodic payment orders from Universal Social Charge (USC) and any future social welfare charges. In the past we have had income levies under the Social Welfare Consolidation Act.

The Minister for Justice and Equality wrote to my office on March 3rd to confirm she is referring the matter to the Department of Social Protection. At the same time it has been noted that the Department recognises this particular defect and the bill will be amended so that these periodic payment orders will be exempted from USC and social welfare. This will mean that the Social Welfare Consolidation Act will need to be amended. We are delighted that the Minister accepted our submissions. Effectively this is a win-win for everybody. It does mean that the monies payable to a person who has suffered catastrophic injuries and who

is receiving a periodic payment order will now be exempt from social welfare going forward. This is a benefit to that individual. It is also a benefit to insurance companies in that they will not need to fund for USC. The whole area of taxation and social welfare can be a minefield. It is very easy for these issues to slip through the net. It is always much easier to get a bill amended that to get an act amended. I would like to thank the Minister for being prepared to accept submissions on technical issues such as this and being prepared to act on same quickly. Richard Grogan the Parchment 51

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News

Hammond Lane – the Future of Family and Child Law The DSBA through the Family Law and Children Committee has commenced a consultation process with the Courts Service regarding the proposed new Family Law and Children’s Court complex in Hammond Lane. Planning commenced for this landmark civic building complex in Dublin in 2016. According to the Courts Service the new complex will be delivered via a public private partnership by the end of 2020. It will provide a purpose-built, state-of-the-art Family Law and Children’s Court complex comprising 19 family law courtrooms over four floors for three court jurisdictions; two children’s courts with jury court rooms; support services; a new Supreme Court and accommodation for Courts Service staff. A project planning group is established chaired by Judge Michael White and Ciaran O’Connor, chief architect with Dublin City Council. The DSBA is at the forefront of a consultation process involving the Courts Service and other stakeholders such as the Law Society and the Child and Family Agency. This process has arisen from a series of consultative meetings which took place to discuss the recent move of the Children’s

Civil Court to Chancery Court House in September. It is back to the future for child law practitioners as Chancery Court House is of course, the rebranded court formerly known as the Bridewell. The DSBA successfully lobbied the Courts Service to ensure that improvements were made to Chancery Court House before it was opened. There have been significant wins arising from good communication with the Courts Service such as more consultation space and even basic (but very important!) matters such as heating in the court room. There remain challenges regarding the facilities such as significant difficulties with the acoustics, concerns regarding security arrangements and a lack of facilities for prisoners. Perhaps most importantly, it is not a child-friendly environment as required by the guidelines of the Council of Europe on child-friendly justice 2010. Putting oneself in the shoes of a parent or a child it can easily be seen how they may be intimidated for example, about giving evidence upon arrival to the large Victorian court house. We will remain in contact with the Courts Service to ensure that any remaining issues are addressed as efficiently as possible. With the start of planning for the new

Farewell Norman

Law Society Trust Scheme

Well known law clerk Norman St John recently retired from the firm called after him, St John Solicitors. Norman devoted over 65 years of loyal and dedicated service to the legal profession. Norman is pictured above with Áine Hynes, partner at St John Solicitors. The Parchment wishes him every happiness and good health in his retirement.

The Law Society Retirement Trust Scheme is a pension arrangement established for the benefit of the Society’s members. The scheme has the oversight of an independent trustee and the Solicitors’ Retirement Fund Committee in place to protect the best interests of the members. The scheme represents a high-quality retirement and taxsaving solution for any Law Society members who do not have access to an employersponsored pension arrangement. The size of the scheme gives its members access to market-leading investment managers. Scheme performance is monitored on a quarterly basis and individual fund managers can be selected or replaced within each fund as necessary. This level of diversification and governance is typically not available to individual pension investors in the Irish market. The scheme’s managed fund achieves long-term growth by investing in a wide range of asset classes such as equities, bonds,

complex in Hammond Lane we have a golden opportunity to improve family law facilities for the 21st century. Indeed the DSBA prepared preliminary submissions in 2015 in anticipation of these developments which are available to view on the DSBA website. Some of our preliminary suggestions include the following: 1. Separate public waiting areas for each court. 2. Consultation rooms with occupancy indicators to ensure fair access. 3. The building should house a confidential mediation service with separate mediation facilities. 4. Practitioners’ rooms should contain separate toilet facilities, photocopiers, printers, storage facilities, drinking water, WIFI and power points. There will be an ongoing consultation process with the Courts Service. The DSBA has a proven track record of working collaboratively with other stakeholders for the benefit of Dublin solicitors and we will keep our members appraised of developments relating to the construction of the Hammond Lane complex. Diego Gallagher, ByrneWallace Solicitors

property, alternatives and cash instruments. The scheme also offers a diversified equity fund which invests across a range of different equities such as global, emerging market, small cap and low volatility equities. The Society recognises the importance of its members making provision for their retirement. The scheme has a simple and transparent charging structure where the annual management charge (taken from the investment performance of each fund) is the only cost that a member incurs. All pension contributions (within Revenue limits) attract relief from income tax and investment returns build up tax free, so saving to the scheme is more effective than savings you make through a high-street bank. The scheme also has online access, so members can monitor their investments 365 days a year. If you’re not a member of the scheme and would like more information please contact the scheme administrator Mercer at 1890 375 375 for further information.

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News

Farewell Clare Death of District

Judge Clare Leonard There was widespread sadness among the legal community at the recent news of Clare Leonard’s passing. She was a judge of the District Court in Dublin for 21 years and was hugely respected by colleagues and peers. Although assiduous in her role, she was known for her humanity and compassion from the bench. She served on the Children’s Court for many years and was held in high regard for her sincere, sensitive, intelligent and patient manner. After a distinguished career she retired from the District Court in 2013. News of the retired judge’s passing was met with great sadness and the DSBA would like to extend its profound sympathies to the Leonard family. Ar dheis Dé go raibh a h-anam.

International Galway Conference on eConveyancing and Title Registration April 7th and 8th 2017 Electronic conveyancing or eConveyancing is heralded as the future for conveyancing and title registration of land and property in many countries throughout the world. This international conference brings together leading authorities on eConveyancing and title registration drawn from academia, practice and the Property Registration Authority. It comes at a critical time in the development of eConveyancing and title registration in Ireland, England and Wales and other international jurisdictions. The conference will be chaired by Miss Justice Mary Laffoy of the Supreme Court and Mr Justice Michael Peart of the Court of Appeal. Speakers include Professor JCW Wylie; Professor Nicholas Hopkins, Law Commission of England and Wales; Liz Pope, CEO, Property Registration

Authority of Ireland; Dr Gabriel Brennan and Eamonn Keenan, eConveyancing Project, Law Society of Ireland; Professor Martin Dixon, University of Cambridge; Professor Sjef Van Erp, Maastricht University; Professor Brendan Edgeworth, University of New South Wales, Australia; Professor Peter Sparkes, University of Southampton; Dr Una Woods, University of Limerick; Professor Rod Thomas, Auckland University of Technology, New Zealand and Mark Jordan, University of Southampton. For further information please contact Dr Padraic Kenna at padraic.kenna@ nuigalway.ie or Sandra Murphy at s.murphy52@nuigalway.ie. Details and registration at: http:// www.conference.ie/Conferences/index. asp?Conference=495.

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Donal McDonald Donal@256media.ie Tel: 01 7076036

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News

Sean O’hUllachain, SC, chair of the Family Lawyers’ Association; Áine Hynes, President DSBA; Josepha Madigan, TD; Keith Walsh, chairman Law Society Family Law Committee and Diego Gallagher, chair of the DSBA Family Law Committee

Family Lawyers Meet Josepha Some DSBA family lawyers held a lunch on December 9th last to congratulate Josepha Madigan on her recent election to Dáil Éireann.

Josepha has been a long-time member of the DSBA and the DSBA Family and Child Law Committee. She remains a powerful advocate on many important family law

Clockwise L-R: Áine Hynes, DSBA President; Geraldine Kelly, past President DSBA; Keith Walsh, chairman Law Society Family Law Committee; Joan O’Mahony, Cliona Costelloe, Michael Sheil, Josepha Madigan, TD and Avril Mangan

related issues. The DSBA wishes her well in her new position and looks forward to working with her in the future.

Clockwise L-R: Diego Gallagher, chair of the DSBA Family Law Committee; Jenny O’Brien, Sinead Kearney, Catherine White, BL, Donagh McGowan, Justin Spain, Sean O’hUllachain, SC, chair of the Family Lawyers’ Association, Aaron McKenna, past President DSBA

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Why do Solicitors recommend Property Health Check to their clients for Pre-Purchase Surveys and Planning / Building Regulation Certificates?

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Because our thorough survey prevents their clients from purchasing a money pit. Here is why... ✓ We are professionally qualified and PI insured Building Surveyors ✓ All of our Pre-Purchase Building Surveys are detailed and unbiased, and include annotated photo’s of defects and areas of concern ✓ Our sole objective is to ensure that YOUR CLIENT is provided with independent professional advice; enabling them to make the best decision and protect their long term interest ✓ Free sample reports are available on our website from our homepage If required our reports can also include:  Party Walls Concerns  Possible / Likely Encroachment over Boundary Lines  Alerts on Extensions / Alterations that may require Planning Permission and / or Building Regulation compliance certificates  Summary, for quick reference Over 15,000 solicitors and their clients have already chosen Property Health Check for their Building Surveying needs. See our website for numerous satisfied clients testimonials.

Ph: 01-6452002 • Email: info@fmb.ie Website: www.fmb.ie Contacts: Kevin Morris (Managing Partner) John Mac Nally (Tax Partner)

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Phone No: 01-628 1040

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DSBA Practice Management Seminar

The DSBA Practice Management Committee hosted a CPD seminar on November 23rd 2016. Topics discussed included ‘Cybercrime attacks on Solicitors’, ‘Limited Liability Partnerships for Solicitors’, ‘Solicitors obligations under the Money Laundering legislation’, ‘Solicitors Accounts Regulations’ and ‘I.T. for Solicitors’. The speakers were John Glynn, John Glynn and Company; Rory O’Neill, Law Society; Robert Ryan, Doherty Ryan Solicitors and John Elliott, Law Society.

Photography: Michael Finn

Left to right: Speakers John Elliot, Robert Ryan, Rory O’Neill, Niall Cawley and John Glynn

Left: Beverly Turner, Taylor & Buchalter; Kay Cogan, Cogan Daly Far left to right: Brian Crowe, Brian Crowe & Co; Cathal Young, Cathal N Young, O’Reilly & Co and Frank Egan, Egan O’Reilly

Right: Valerie Peart, Pearts Solicitors; Gerard Wade, Pearts Solicitors Far right: Mary Kilcullen, Kilcullen & Associates; Elizabeth Bruton, Bruton & Co

Left: Niall Cawley, Chair; Rudhan Killeen, Practise Management Communications; Eugene O’Connor, Rollestons Far left: Patricia Drumgoole, Drumgoole Solicitors; Joanne Sheehan, Cornelius Sheehan & Co

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Spring 2017 dsba.ie Photography: Michael Finn

Right: Niall Cawley, Chair; Greg Ryan, speaker; Rory Staines, BL, speaker

DSBA Practice Management Seminar

The DSBA Practice Management Committee hosted a CPD seminar on December 1st 2016. Topics for discussion included ‘Modern Practice and the Laws of Evidence’, ‘Cyber Security and Insurance’ and ‘Update on the Legal Services Regulation Act 2015’. The speakers were Rory Staines, BL, Stephen Fitzpatrick, Peter Fitzpatrick Cost Accountants; Tom Nolan, CORT base and risk management; Greg Ryan, Greg Ryan Solicitors; Brian O’Meara, O’Leary Insurance Group.

Left: Nessa McGerty, Pembroke Solicitors; Gerry Dunne, O’Brien Dunne Far left: Frank Murray, Murray Flynn Maguire; John Nelson, Nelson & Co

Right: Margaret McGinley, McGinley Solicitors; Matt Nagle, Nagle Solicitors; Jim Downing; Lawlor O’Reilly & Co. Far right: Rudhan Killeen, speaker; Rory Staines, BL, speaker

Left: Liam Keane, Liam Keane & Partners; John Fahy, John Fahy & Co Far left: Tauna O’Connor, James A Connolly & Co; Nora Morris, James A Connolly & Co

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DSBA Property Seminar

The DSBA Property Committee hosted a CPD seminar on February 9th 2017. Topics for discussion included ‘First Registrations in the Property Registration Authority’, ‘Requisition 44 and Searches’ and ‘Mapping - PRA Requirements’. The speakers were Brian Gallagher, Gallagher Shatter Solicitors; Mairead Cashman, Dublin City Council; Eithne Ryan, Property Registration Authority and Tom Brosnahan, head of mapping at the Property Registration Authority.

Photography: Michael Finn

Left to right: Paul Maguire, Maguire & McErlean; Edel Finn, Gordan Judge; Rachel Scanlon, Tormeys

Left: Aidan Marsh, Beauchamps; Shane O’Dea, Sheehan & Co. Far left: Angela Becker, Becker & Campion; Mairead Leyne, Mairead Leyne Solicitors

Right: Catherine O’Flaherty, Law Society of Ireland; Michael Hayes, Michael Hayes Sols. Far right: John Plunkett, Plunkett Kirwin; Susan Halpenny, PCL Halpenny

Left: Stuart Creavin, Creavin & Co.; Darragh McEvoy, Fitzpatrick Gallagher McEvoy Far left: Nicola Walsh, David Turner & Co.; Roisin McCloskey, Beatty Healy

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Spring 2017 dsba.ie Photography: Michael Finn

DSBA Litigation Seminar

The DSBA Litigation Committee hosted a CPD seminar on February 23rd 2017. The seminar addressed important recent developments in civil litigation including recent judgements and trends from the Court of Appeal, the new Book of Quantum, fraudulent and exaggerated claims and cases arising out of low speed impacts. The speakers were Emma Prendergast, BL; Eoin Sreenan, BL and Noel Guiden, Behan & Associates Legal Cost Accountants. Above: Catherine Molloy, Kelly Grant and Sarah Grace, all from Pembroke Solicitors Above: Kyran McGinley, McGinley & Co; Harry Ward, HJ Ward & Co. Right: John Synott, John Synott & Co; Harry Carpendale, Patrick P O’Sullivan & Co. Far right: Eoin Sreenan, Noel Guidan, Emma Prendergast, Killian O’Reilly

Left: Ronan O’Reilly, O’Reilly Thomas; John J Kelly, Coyle Kennedy Smyth; Liam Keane, Liam Keane & Partners Far left: Jennifer O’ Riada, O’Riada Solicitors; Frank Taaffe, Frank Taaffe Solicitors

Right: Niamh Gibney, Reddy Charlton; Avril Gallagher, Gallagher & Co; Laura Horan, MacGeehin Toale. Far right: Padraig O’Mairtin, O’Connor Solicitors; Mark Hession, O’Connor Solicitors

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Dublin Southside Solicitors Annual Gathering

The solicitors of Dun Laoghaire and surrounding environs gathered for the 32nd annual black tie social on February 3rd 2017. A great night was had by all.

Above left to right: Mary Higgins, Peter Boylan, Karen Lydon, Greg Flanagan, Rebecca Johnson, Pearse Mehigan

Left: Patricia McSparran, Prof Paul O’Connor Far left: Martin Sills, Linda Lawless

Right: Justin and Clare McKenna. Far right: Susan Martin and Vivienne Matthews

Left: Judge Anne Watkin, Niall Cawley, Laura MacKenna BL Far left: Mary Geraldine Miller BL, John Miller, Angela McCann

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Spring 2017 dsba.ie Photography: Dermot Byrne

Above: Law Society President, Stuart Gilhooly, DSBA President Aine Hynes Above Right: Jane Barron BL, Yvonne Chapman, Ken Murphy, Sharon McElligott RIght: Dublin City Sheriff James Barry, Laura Flynn, Ken Byrne

Left: Ann O’Halloran, Kevin O’Higgins, Laura Flynn Far left: Ronnie Lynam, Mary Cantrell

Right: Sean McCormack, Katie Timmons Far right: Judge David Kennedy, Judge Anne Watkin

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Closing Argument Kevin O’Higgins

Kevin O’Higgins is a former President of the Law Society of Ireland and the DSBA. He is a former editor of the Parchment

Every Cloud Has a Silver Lining

A

nd so we are now at last in the ‘post Article 50 notification period’ of post Brexit. The starting gun has finally been fired in what will undoubtedly be the longest, toughest negotiation of all time. While the Treaty provision envisages a two-year period to reach a conclusion, there is every likelihood that an extension to this period will be required, perhaps several. In the 60-year history of the European Union, no member has ever left and with the UK now opting out after 44 years of membership, unravelling the marriage of the two intertwined legal systems of law will be very difficult. Take for example the Brussels Convention on enforcement of judgments throughout the EU. This will no longer be available to the UK and they will have to renegotiate bilaterally throughout the 27 member states. Brexit hit us like a thunderbolt. Some here felt that a new referendum beckoned (just like we do in Ireland!) but it’s just not the British way. “Brexit means Brexit” said the Prime Minister. You have to admire British stoicism and their resoluteness just to “get on with it” is admirable. As was once said following another political contest: “the people have spoken … the bastards”. For sure, a break-up after a 44-year marriage is difficult notwithstanding their sceptical moodiness. Yet it is something that we have to accept. As the Taoiseach remarked; “We didn’t cause this. We have to put up with the consequences of it.” For the legal profession in Ireland, Brexit means business! That’s why it is encouraging to see how quick off the mark our big firms have all established Brexit advisory groups focused on

advising their clients of the legal ramifications posed by this calamity. Our hope is that this necessity will play well for us and put Dublin and Ireland in the international shop window for UK-based institutions desperate to maintain an EU footprint. Already we have seen an avalanche of lawyers from the UK taking out practising certificates here. This of course, is strategic. In fact, according to the Law Society of England and Wales 36 of the top 50 UK law firms have at least one office in another member state. Loss of rights of representation before EU courts will pose great challenges for UK lawyers. As for our poor colleagues up north, it’s a disaster. The non-EU lawyers ability to avail of legal professional privilege is also an issue for them. Yet despite the huge uncertainty and upset we all feel (or felt), there is every chance that Brexit will result in huge opportunities for lawyers. Our Government must ensure we have in place the infrastructure in state-of -theart office space, housing accommodation, transport accessibility but especially, regulatory adherence, to make the migration of business relocation to Ireland as seamless as possible. Being English speaking, hugely proEuropean and from the common law tradition, makes us well placed to reap a postBrexit dividend. So it will be a difficult balancing act for our Government. As has been noted the harsher the deal the UK get from the EU, the greater the knock-on effects for our economy. While we are anxious to attract new business we won’t want to antagonise our nearest and dearest by appearing predatory. Current indications make us fear the re-appearance of

Despite the huge uncertainty and upset we all feel, (or felt), there is every chance that Brexit will result in huge opportunities for lawyers

a hard border (which no one, as yet knows, what the heck that even means!). Yet we are desperate to minimise its practical effects. We must hope therefore, and look forward to FDI in the sense of significant growth in financial services and insurance areas. It is just as well that our Central Bank in its shiny new edifice, is heavily recruiting a whole swathe of lawyers and regulators. Rigorous but unfussy regulation, is what is required and let’s get the word out that we have all that here, in spades. For intellectual property lawyers there must be a possibility (and our Government should champion) the fact that the Patent’s Court or some of its functions, may be up for grabs. Its spiritual homeland of London is now in noman’s land. Dublin is well placed and better than most to win that prize. Then there is the issue of data protection and the conundrum facing the UK from May 2018 with the coming into effect of the general data protection regulations imposing strict adherence on all commercial activity within the EU. This presents even further hurdles for UK business within the EU. As the celebrated 16th century poet Milton opined: Was I deceived, or did a sable cloud Turn forth her silver lining on the night? I did not err, there does a sable cloud Turn forth her silver lining on the night And cast a gleam over the tufted grove; It is part of our legal DNA to play the cards we’re dealt – think no second senior; no juries in personal injuries; PIAB, the demise of the sole practitioner, the Legal Services Regulation Act. We thrive and prosper on making the most of our seemingly hopeless situations. So, let’s trump Brexit and Make Ireland Great Again! P

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IF LIFE GIVES YOU LEMONS WE’RE HERE TO HELP Consult a Colleague now in total confidence

Call us on 01 284 8484 All calls to the Consult A Colleague helpline are treated in the strictest confidence - there is no need to give a name or number. A confidential free service from the DSBA.

www.consultacolleague.ie

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Parchment Spring 2017  
Parchment Spring 2017