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D UB LIN SOLICITORS’ B AR ASSOCIATION MAGAZ INE | SPRIN G 2019 | ISSU E 79

ON THE CLOCK New Employment Legislation prohibits zero hour contracts

LIFE AFTER LAW – JOURNALIST AND FORMER SOLICITOR SARAH JANE MURPHY NEW PRACTICE DIRECTION FOR ASYLUM, IMMIGRATION AND CITIZENSHIP LIST OF THE HIGH COURT


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Spring 2019 dsba.ie

From the Editor

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elcome to the spring edition of the Parchment which will arrive on your desk in the lead up to the Easter break. Stuart Gilhooly begins a new series of interviews with people who were once solicitors but have since moved on to another career. In this edition, Stuart meets journalist and court reporter, Sarah Jane Murphy. Many colleagues think there is no way out of a career in law, once its long arm gets you! However, the great training, skills, attributes and expertise gained as a solicitor are invaluable not just in the law, but in life. Important changes have been recently introduced in Personal Injuries legislation, some of which make practice as a personal injury litigator even more challenging (please see pages - ). urthermore, an extension time for the renewal of a High Court summons has been reduced from six months to three – as set out on page . New employment legislation came into force on the 4th March which will have an impact for both employers and employees. Einde O’Donnell gives

an overview of the new mployment ( iscellaneous Provisions) Act in this edition of the Parchment. ongratulations are extended to A ouncil member, usan artin on the launch of her coauthored book, Civil Procedure in the Circuit Court, rd edition. arl owling and usan deserve immense credit for a very ne publication. It is alarming and disheartening that the our Courts remains without a public restaurant. It has discommoded solicitors, clients and an array of other court users. urther comment is set out on page . Have a great Easter break.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2018/2019

GREG RYAN DSBA President

TONY O’SULLIVAN DSBA Vice President

DIEGO GALLAGHER Honorary Secretary

JOSEPH O’MALLEY Treasurer

SUSAN MARTIN Programmes Director

LAURA HORAN

NIALL CAWLEY

PAUL RYAN

MATTHEW KENNY

JOAN DORAN

KILLIAN O’REILLY

RONAN McLOUGHLIN

CIARA O’KENNEDY

GERARD O’CONNELL

AVRIL MANGAN

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

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

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

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

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

DSBA OFFICE, T: 01 670 6089 F: 01 670 6090 E: maura@dsba.ie DX 212011 W: www.dsba.ie ADVERTISING ENQUIRIES Caron Flynn T: 01 707 6022

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

WHEN YOU HAVE FINISHED WITH THIS MAGAZINE PLEASE RECYCLE IT.

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Spring 2019

Contents 6

The Employment (Miscellaneous Provisions) Act 2018: an Overview from an Employer’s Perspective

Limitations and Libel

14

Never too late

16

New Practice Direction for Asylum, Immigration and Citizenship List of the High Court

Hugh McDowell BL examines how the courts can deal with extending the statutory limitation period in defamation actions

After more than 40 years as a practising solicitor, Orlaith Traynor fulfilled a lifelong ambition

Elizabeth Mitrow sets out the obligations of the new Practice Direction

20

Appointing a Director: Issues to Consider Frances Bleahene considers some of the legal requirements and issues in the appointment process

26

Get Closer To Your Clients Digitally – or Somebody Else Will Guy Fagan advises that the key to success in the digital landscape is not size or budget

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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LIFE AFTER LAW... SARAH JANE MURPHY

Einde O’Donnell analyses the main changes that employers should be aware of

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Court reporting proved a perfect t for me as I was combining my interest in the law and the pageantry of the courts with the added element of relaying a story to people who read my pieces

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Spring 2019 dsba.ie

Contents

REGULAR FEATURES 01 04 54 58 64

Editor’s Note President’s Message DSBA News Photocall Closing Argument

16 30

Important Legislative Changes in Personal Injuries Litigation Stuart Gilhooly warns personal injury practitioners to be alert to the new legal provisions which further impact on personal injury litigation

32

The New Trade Mark Regulations: What Brand Owners Need to Know Colm Maguire and Olivia Mullooly say that the new regulations bring about some noteworthy and mostly positive changes for brand owners

34

Moya Quinlan – A Trailblazer Ahead of her Time Stuart Gilhooly pays tribute to the late, great Moya Quinlan

38

Life after Law

44

Beware of Time Limits in Employment Cases

30

Stuart Gilhooly meets journalist Sarah Jane Murphy to discuss her Damascene conversion

Richard Grogan warns about the delays in lodging claims

48

Twilight of the Kaiser

52

A Tale of Two Dismissals

Susan Martin looks at the trial of Kaiser Wilhelm II after World War I for war crimes

Ailbhe Dennehy warns of a cautionary tale for employers following a recent High Court decision

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Message from the President

Springtime Concerns

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wo events will shortly be upon us which epitomise the contributions of the DSBA to the life of a solicitor in Dublin, being principally education and collegiality. Our annual dinner will be held on 21st June 2019 at the Conrad Hotel, Dublin and that event will incorporate the Law Book Awards as it has done for the last number of years. The shortlist will be announced shortly and we expect the usual hard-fought competition for a place on the podium. Come along and join us and enjoy the midsummer ball. The annual conference will be held in Lyon in the third week of September which will be a balmy oasis for lawyers escaping the stresses and strains of their offices before the commencement of the new term. A boat trip and dinner on the river, a visit to the local vineyards followed by the gala dinner in the premises of the illustrious Paul ocuse. We will also t in our P with a visit to the local court of appeal, and contributions by the local bar association and the Irish delegation to the offices of INTERPOL which is also based in Lyons. This is a conference not to be missed and if you wish to join us, please book now as places are lling up uickly. The DSBA has a host of seminars and CPDs also coming up and I hope to see you at one of our many events in the Radisson and beyond. Our committees continue to organise excellent seminars, hallmarked by the best speakers in their elds which make for superb seminars. Please see the website www.dsba.ie for more details. On a more serious note, the progress of the Legal Services Regulatory Authority continues apace. We are delighted to report that we continue to meet every two months with Dr Brian Doherty, the CEO of the LSRA. It is anticipated that the regulation department will commence work on the 1st July 2019 with the transfer of some members of staff from the aw ociety and the rest to follow in due course. The education piece on which the DSBA has made a very substantial contribution is also proceeding with a view to composing a public symposium to canvass interested parties’ views, probably in October. This follows on the various reports principally the Maharg report, the Hooke Tangaza report and the report of our own highly respected Mr Justice Michael Peart. Of more concern to legal practitioners

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will be the levy that the Legal Services Authority is proposing to introduce. The expenditure for 2018 was approximately â‚Ź1.4m and it is proposed to levy that pro-rata on legal professionals. That budget is set only to grow, as the LSRA has yet to nd premises, and to retain the staff necessary for the proper execution of its functions. Whether that will lead to a diminution in the Law Society subscription paid by each member is yet to be seen but one would anticipate as the functions are transferred, that the cost base of the Law Society will decrease accordingly. Of some concern is the latest directive affecting those practising in the area of immigration. On 17th December a new re uirement was put in place compelling solicitors acting for applications in the immigration list to personally vouch the factual matrix surrounding the application of their client to the court. While it

is yet to be seen how this will play out, there is no doubt that this provides a signi cant obstruction to access to justice for those applicants. The fact that it also was imposed on 1st January, some 13 days after its announcement, meant that many solicitors who should have been relaxing at home with a mince pie over their Christmas break, were forced back to their offices to consider the full rami cations of the new direction. Over the next few months we will continue to make representations to Government, the Courts Service and the judiciary and of course, the Minister, on this and other issues on behalf of our members – and all input from members is very much appreciated. Might I wish you a happy forthcoming spring and I look forward to seeing you at one of our many events. Greg Ryan, DSBA President


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The Employment (Miscellaneous Provisions) Act 2018: an Overview from an Employer’s Perspective escribed as groundbreaking, the mployment ( iscellaneous Provisions) Act ( Act) came into force on th arch . Einde O’Donnell analyses the main changes that employers should be aware of and suggests practical steps that employers should take to ensure that they are in compliance with the Act

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he Act has introduced signi cant measures with the intention of improving the position of those in traditionally less secure working arrangements, by granting employees greater protections and prohibiting the use of ero hour contracts, except in certain limited circumstances. Prior to becoming law, the bill was subject to signi cant debate and amendment as it passed through all the stages of the Oireachtas before enactment. A change which was of particular relevance for employers was the removal of the so-called “designation” amendment. It proposed to make it an offence to wrongly designate the employment status of a worker. This proposal attracted uite a bit of attention given

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its potential signi cance for employers, but it did not make it into the nal version of the bill.

Core Terms and Conditions Employers are required to provide employees with a statement of core terms and conditions of employment within ve days of commencing employment. The core terms and conditions are as listed below. . The full name of the employer and employee. . The address of the employer. . The expected duration of the contract (where the contract is temporary or xed-term). . The rate or method of calculating pay. . What the employer reasonably expects the normal length of the employee s working day and week will be. Employers who do not provide the required statement of core terms and conditions will be guilty of an offence and will be liable to a ne of up to , or a term of imprisonment not exceeding months. A director, manager, secretary or officer can also be found guilty of an offence. In addition, employees who have at least one month’s service, are entitled to take a claim to the Workplace elations ommission (W ) and may be awarded up to a maximum of four weeks remuneration as compensation, if they have not been provided with the statement of core terms and conditions. The Act also introduces antipenalisation provisions for employees who invoke their rights to seek these core terms and conditions under the Terms of mployment (Information) Act ( Act) with the maximum compensation being up to four weeks remuneration also.


Spring 2019 dsba.ie Einde O’Donnell is an associate solicitor at LK Shields. He specialises in employment law

Steps for employers: eview contracts to ensure that they contain these core terms and conditions as set out above. eview the processes in place for the provision of contracts to new hires to ensure that, at a minimum, they receive a statement of core terms and conditions within ve days. aking reference to the ve core terms in an offer letter would be one possibility to consider. • There is already an obligation on employers under the Act to provide new employees with a written statement setting out terms of employment within two months after the commencement of employment. This obligation overlaps with the obligation that will be placed on employers by the Act. mployers should consider putting in place a process whereby one document dealing with obligations set out in both the Act and Act is given to the employee within ve days of commencement of employment.

Employment Law

Introduction of Banded Hours Concept into the Organisation of Working Time Act 1997 If an employee s contract of employment or statement of employment does not re ect the average number of hours worked per week by an employee over a reference period, then the employee is entitled to be placed in an appropriate band of weekly working hours. The appropriate band is determined by the employer having regard to the average number of hours worked by the employee in a month reference period. The relevant bands are as follows Band A

Prohibition on Zero Hours Contracts

From hours hours hours hours hours hours hours hours and over

To hours hours hours hours hours hours hours

The Act prohibits ero hours contracts in most circumstances, with limited exceptions being made for genuine casual work or for cover in emergency situations. ero hours contracts refer to the practice where an employee is re uired, without the guarantee of work, to make themselves available for work in the following circumstances . for a certain number of hours (the contract hours) . as and when the employer re uires him or her to do so . for both a certain number of hours, and otherwise, as and when the employer requires him or her to do so. The Act has retained the same compensation mechanism as was previously set out in ection of the Organisation of Working Time Act , i.e. where an employee in any one week is required to work less than of the “contract hours” or work available (if engaged on an “if and when” basis), then they are entitled to receive compensation which is calculated as the lesser of of the contract available hours or hours. However, the severity of the potential penalty has been increased by the Act in that it will now be calculated as three times the national minimum hourly rate of pay, or three times the minimum hourly rate of remuneration provided for by an applicable employment regulation order, rather than an employee s normal rate of pay.

H

Steps for employers: eview contracts and work practices to ensure that they do not fall foul of the prohibition on ero hours contracts. mployers who are seeking to rely on the “casual work” exception need to carefully review work practices and contracts to ensure that this exception does actually apply. The crucial point here is that the work arrangements must be genuinely “casual” meaning that employees must be completely free to turn down an offer of work without there being any negative repercussions arising from such refusal. In other words, there can be no mutuality of obligation.

Protections Against Penalisation

An employee who believes that they should be placed in a band of weekly working hours must make a re uest in writing to the employer. An employer may refuse the re uest on the grounds that • There is no evidence to support the employee’s claims. There have been signi cant adverse changes to the business during or after the reference period. It would not be practicable for the employer to comply with the re uest due to exceptional circumstances or an emergency. • The average hours worked by the employee during the reference period were affected by a temporary situation that no longer exists. Where an employee s re uest is granted, they must be placed in the appropriate band within four weeks of the date of the re uest. Otherwise, an employee dissatis ed with a refusal of their re uest may refer a complaint to the Workplace elations ommission in relation to a failure to comply with the banded hours provisions. Where the complaint is well founded, an adjudication officer (or the abour ourt, on appeal), may require the employer to place the employee on the appropriate band of hours. mployers should review their existing contracts and working time records to ensure that the speci ed contract hours actually re ect the hours being worked on average.

The Act prohibits ero hours contracts in most circumstances, with limited exceptions being made for genuine casual work or for cover in emergency situations

The Act also introduces anti-penalisation provisions for employees who invoke their rights under the Organisation of Working Time Act with the maximum potential compensation being up to two years remuneration.

Final Thoughts As set out above, the introduction of the Act raises a number of practical issues for employers which must be dealt with. Otherwise, employers are exposing themselves to the risk of challenges and potentially signi cant liabilities. P the Parchment 7


Editorial Comment

An Insult to All Four Courts Restaurant Shuts its Door for Good

In a direct snub to all users of the Four Courts, the invaluable facility of a public restaurant has been closed. If the powers that be have any interest in ensuring the public are treated properly when accessing justice, a replacement restaurant ought to be found somewhere in the complex, and found quick

It is only reasonable that people attending the highest court complex in the land can expect to go somewhere for a break – be it for a coffee or lunch

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he public restaurant at the Four Courts closed its doors at the end of July 2018. Despite a campaign and pleas from court users to keep the restaurant open, the owners, the Office of Public Works refused to listen and shut the facility. Even the Minister for Justice and Equality, Charlie Flanagan TD, tried to intervene and prevent the closure of the restaurant that has served the public and practitioners for over 40 years. The restaurant has had to make way for offices that were “badly needed” in the Four Courts complex. What could be more badly needed than food during a long day at court? The closure was criticised by the Law Society and Bar of Ireland and an online petition signed by hundreds of court users fell on deaf ears. Despite this pressure, the facility was permanently shut. The Parchment is appalled at the closure of the Four Courts restaurant. It has been a place where clients have gone to wait for their cases to be called; to discuss their cases with solicitor and counsel; to have that cup of tea or coffee to ease their worries or troubles. The restaurant has been a haven of sustenance for so many and for so long. It is only reasonable that people attending the highest court complex in the land can expect to go somewhere for a break – be it for a coffee or lunch. Plaintiffs and defendants need a place to relax or destress. The loss of this essential facility is an affront to them. Many court users will recall with fondness, the bar that operated for many years at “the Pit” adjacent to the restaurant. It was a place where many a client got to toast their court case victory while others went there to drown their sorrows. Whilst we bemoan what is gone – what is left is an insult to all. Nothing has replaced the closed restaurant. Many of us like the intimate and cosy Friary Café and the staff there are excellent. However, the little café which is the only offering left to the public now, accommodates less than 20 seats and does not serve hot meals. As a result – the public as well as solicitors (barristers have their own restaurant) have to leave the

The way to a hot cuppa… not anymore

Is this what it has come to? A mobile canteen dispensing hot drinks has been established outside the Four Courts since the restaurant’s closure

Four Court’s complex if they wish to have a hot lunch or substantial meal. On many occasions, time does not permit users to leave the complex. A public restaurant operates at the Criminal Courts of Justice, yet now, the Four Courts does not enjoy like-with-like facilities for its users. It is a crying shame and a disgrace that the OPW and Courts Service should put the building of new office space ahead of the welfare of the public and legal practitioners. P


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Limitations and Libel Among the signi cant reforms brought about by the efamation Act was the reduction of the limitation period in defamation cases from six years to one year. Hugh c owell, examines how the courts can deal with extending the statutory limitation period in defamation actions

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he justi cation for a short limitation period in cases of defamation is perhaps best captured by the comments of eane . . in Ewins v. Independent Newspapers (Ireland) Limited I. . at ‘A plaintiff in defamation proceedings, as opposed to many other forms of proceedings, is under a particular onus to institute his proceedings instantly and without delay and of course, not simply because he will otherwise be met with the response that it cannot have been of such significance to his reputation if he delayed so long to bring the proceedings but also in his own interests in order, at once, to restore the damage that he sees to have been done to his reputation by the offending publication.’ However, section ( )(c) of the tatute of imitations (as inserted by section of the efamation Act ) provides for a judicial discretion to extend the limitation period from one year to two years. or such a direction to be made, a judge must be satis ed that (a) the interests of justice re uire it and (b) that the prejudice that the plaintiff would suffer if the direction were not given, would signi cantly outweigh the prejudice that the defendant would suffer if it were given. In assessing the latter condition, a court must have regard to the reason for the failure to bring the action within the one-year period and the extent to which any evidence relevant to the matter is, by virtue of the delay, no longer capable of being adduced. The relatively broad nature of the discretion provided for under section ( )(c) makes it difficult to identify precisely what type of claim would justify an extension being granted. However, a series of recent

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High ourt decisions has provided useful guidance to practitioners dealing with cases which might re uire an extension application to be made. This article sets out the procedural steps re uired for a section ( ) (c) application and attempts to summarise some of the over-arching legal principles which are emerging from the courts.

Procedural Steps in Section 11(2)(c) Applications Order rule ( ) of the ules of the uperior ourts states that an application for leave to extend time is brought ex parte and by originating notice of motion, grounded by affidavit. The court hearing the application is entitled to direct that the intended defendant be put on notice, and presumably be given an opportunity to resist the application. However, rule ( )( ) states that where a defamation action has not been brought in respect of a statement, an application for an extension of time shall be brought by originating notice of motion, in which the intending plaintiff shall be named as applicant and the intended defendant as respondent. Precisely how sub-rules ( ) and ( ) are expected to interact is not uite clear, and aside perhaps, from a situation in which a defendant has not entered an appearance, it is difficult to envisage circumstances in which the application would be heard ex parte. The wording of these provisions has given rise to the uestion of whether a plaintiff must seek an extension of time prior to issuing defamation proceedings, or whether he or she is entitled to bring the application once the defendant has raised the tatute of


Spring 2019 dsba.ie Hugh McDowell BL is a practising barrister with a speciality in defamation

imitations as a defence. In Watson v. ampos I H , arrett . that suggested at par. that ‘once a plaintiff is outside the standard one-year limitation period, a direction ought to be sought for the extension of the limitation period so that – assuming the extension is granted – a defamation action may then commence, rather than a defamation action commencing and a direction then being sought.’ imilarly, in Shell v. Rooney I H , aifeartaigh . proposed at par. that, prior to issuing proceedings, ‘the appropriate procedure might be to issue a motion seeking the court’s leave, with a grounding affidavit exhibiting a draft plenary summons and statement of claim’. However, in both of those cases the application to extend time was refused on its merits, and those comments relating to the correct procedure to adopt might properly be considered obiter dicta as a result. The uestion does appear to have been addressed de nitively however, by arton . in the recent decision of Quinn v. Reserve Defence Forces Representative Association I H . In that case, the plaintiff issued defamation proceedings in ecember arising from comments made at the defendant s annual conference in eptember . The defendant amended its defence by pleading that the plaintiff s claim was statute-barred, in response to which the plaintiff brought an application under section ( )(c). Having considered the arguments raised by each side, arton . held as follows at par. ‘Accordingly, the court… finds on a proper construction of s. 11(2)(c), that after the expiry of the one year limitation period proceedings may be issued without an order having to be obtained extending the time within which the proceedings may be brought…

Litigation

It was only when the statute was pleaded in the defence as amended that the limitation period became an issue at all and gave rise to the necessity for the application and the relief sought if the portion of the claim to which the plea refers is not to be defeated…’ This judgment, viewed in the context of Order rule of the ules of the uperior ourts, is clear authority for the proposition an application to extend the limitation period in defamation claims can be brought either before or after the plenary summons has issued.

Factors Governing the Exercise of Discretion The factual matrix of each defamation case, and the causes of the delay in issuing proceedings, differ to such an extent that it is difficult to distil principles of universal application from the relatively few decided cases. However, from the wording of the statutory provision and case law, it is possible to make a number of general comments. irstly, the clear presumption from the wording of the statute is that the one-year limitation period should not be departed from lightly and, in the words of arrett . in Watson, ‘when it comes to bringing a defamation action... a one-year limitation period is standard, more than one year is exceptional’ (at par. ). econdly, it is important to note that the prejudice to the plaintiff of not granting the direction must significantly outweigh the prejudice to the defendant of granting it. The granting or refusal of a direction will nearly always re uire a court to decide between forcing a defendant to defend a claim which is on its

It is important to note that the prejudice to the plaintiff of not granting the direction must signi cantly outweigh the prejudice to the defendant of granting it

the Parchment 11


The mere proffering of a reason for delay, without cogent supporting evidence or ade uate explanation, will almost certainly result in a section ( ) (c) application being refused

12 the Parchment

face, statute-barred, or preventing a plaintiff from bringing a claim. It therefore follows that the plaintiff must be in a position to demonstrate some additional prejudicial factor which signi cantly outweighs the defendant s prejudice and justi es the making of the direction. Thirdly, whereas the reasons for the delay and the potential loss of evidence arising there from are two factors to which a court must have regard in weighing the relative prejudices, there is clearly nothing to prevent a court from considering whatever other factors it deems appropriate in a given case. A consistent feature of unsuccessful applications to extend time is an inade uate explanation of the reasons for delay in commencement of the proceedings. The mere proffering of a reason for delay, without cogent supporting evidence or ade uate explanation, will almost certainly result in a section ( )(c) application being refused. The judgments in Watson and Rooney both relied upon the following comments from harp . . in Reed Elsevier Limited (t/a Lexis Nexis) & Anor v. Bewry W A iv at par. in relation to the e uivalent statutory regime in ngland and Wales ‘The onus is on the claimant to make out a case for disapplication: per Hale LJ in Steedman at para 33. Unexplained or inadequately explained delay deprives the court of the material it needs to determine the reasons for the delay and to arrive at a conclusion that is fair to both sides in the litigation. A claimant who does not ‘get on with it’ and provides vague and unsatisfactory evidence to explain his or her delay, or ‘place[s] as little information before the court when inviting a section 32A discretion to be exercised in their favour ... should not be surprised if the court is unwilling to find that it is equitable to grant them their request.’ per Brooke LJ in Steedman at para. 45.’ One reason for delay which has found some favour with the judiciary in this jurisdiction and the neighbouring jurisdiction is where a claimant has held off on issuing proceedings so as to await the outcome of another investigation or dispute resolution procedure. In Quinn for example, arton . accepted as hardly surprising and not unreasonable

the decision of the plaintiff not to issue defamation proceedings until the production of a report by a solicitor appointed to carry out an independent investigation of the subject matter of the plaintiff s complaints. y contrast, the most high-pro le section ( )(c) application since the advent of the Act was the unsuccessful attempt by former arda ommissioner ir n O ullivan to extend the time in which to sue the Irish Examiner over a front page story it carried in October about senior garda conducting a major campaign to destroy a whistle-blower within the force. In O’Sullivan v. Irish Examiner I H , the reason offered by the applicant for her delay was that she would have considered her position as arda ommissioner more difficult had she done so, in circumstances where she was ‘consumed’ by the isclosures Tribunal. Pilkington . refused to grant an extension of time, and held at par. ‘In my view the reasons advanced by the applicant, sincerely and generally held I have no doubt, are in my view insufficient to disapply that one-year statutory time limit. Regard must be had to the time limit laid down by statute; this applicant could have instituted proceedings within that statutory time limit. That she did not do so has consequences for her in now seeking to issue the intended proceedings. To make a decision not to deal with matters within a time limit imposed by statute is in my view an insufficient reason to now grant an extension of it.’

Conclusion Practitioners dealing with clients who may have a cause of action in defamation ought to institute proceedings at the earliest possible opportunity in order to obviate the need for a section ( )(c) application. Where the need for such an application does arise however, it is clear that the applicant must discharge a considerable burden in seeking to dislodge the statutory presumption towards a one-year limitation period. lear, cogent and well-evidenced reasons for the delay must be placed on affidavit, sufficient to demonstrate that the interests of justice favour the granting of an extension of time. P


DSBA Midsummer Ball and Law Book Awards

Friday 21st June 2019 Conrad Hotel


Never Too Late After more than 40 years as a practising solicitor, Orlaith Traynor ful lled a lifelong ambition of returning to college to study for her master s degree. he recalls the background to this red letter day

I

t was a damp and dismal anuary morning as I made my way apprehensively up lackhall Place to the aw ociety s aw chool. Having worked in the legal system for ve decades, experiencing all sorts of highs and lows within it, induction day for the master s programme represented a new chapter in my career. I uali ed as a solicitor through the old apprenticeship system. ack then, you spent ve years full-time (unpaid) in a hands-on environment at a solicitor s office, while attending lectures on the side. This time would be reduced by one year if you passed the annual law exams, based on the in either Trinity or . The training was just as rigorous as a degree, if not more – and your uali cation was bestowed with parchment and ceremony. The only difference was that no letters followed your name. Although perhaps trivial in the grand scheme of things, that distinction was something I never forgot. y mother graduated from in the s with a degree in maths and science. As a teacher who raised eight children, she placed huge emphasis on the value of education – particularly for her ve daughters, who were all instilled with a drive to forge their own paths in life. ut after completing the eaving ert I found myself in the same position as a close friend of mine it felt like both of us had been denied the results we deserved. There was no process of appeal to have papers rechecked. All of a sudden, pursuing a degree seemed out of reach. Times were harder then and, at , spending another year trying to get into college just didn t seem like a feasible option. o when we learned of the apprenticeship route, we both embraced it – taking our entrance exam and ualifying together.

14 the Parchment

y friend retired last year, having led a ful lling career in law. ut as my own retirement loomed closer on the hori on, I felt like there was a gap I hadn t lled – a sense of completion that eluded me – even if it made no difference to anyone else. It had always been in my mind to return to third-level education but having married as soon as I uali ed, raising three children while working full-time, the opportunity never presented itself. One day in , an advertisement in the Gazette caught my attention. The aw ociety was offering a master s programme in conjunction with the niversity of orthumbria whereby your professional uali cation counted towards the entry re uirement. The programme was tailored towards solicitors already working full-time and could be spanned over two years. This felt like the perfect solution. ome uestioned the practicality of pursuing a degree at this stage of my life, taking on a signi cant commitment for something that – on the face of things – I didn t actually need. ut this meant far more to me than a technical formality. When it came time for the information day, about people attended – a broad spectrum of colleagues from large rms, small rms, county councils, institutions and places all over Ireland – though I couldn t help noticing that I was the oldest by far. We had to introduce ourselves in turn and say why we were interested. ome gave witty and amusing answers but I just kept it simple, explaining that I d spent over years in private practice and that this opportunity was a long-held dream of mine. To my surprise, the reaction was only encouraging. or many of those present, just having lunch in the canteen brought back memories of their student


Spring 2019 dsba.ie Orlaith Traynor LLM is a practising solicitor for more than four decades at Gill Traynor Solicitors, Harold’s Cross

days in lackhall Place. I had never even been there before, as when I was a student the aw ociety had its head uarters in the solicitors buildings within the our ourts, with our lectures being held in t Andrew s treet hurch. It was during those classes that I met my husband ichael. The curriculum was being changed at the time, meaning that third-year and rst-year students were combined for erry ee s lectures in practice and procedure as well as company law. ichael s father was heard to remark that he knew something was afoot when he began getting up for am classes. I feel blessed that things turned out the way they did, but the induction at lackhall made me realise how much the process of studying had changed in all that time. One young woman had just uali ed that week I remember thinking that the technological aspect of the course – the entire thing is done online – would come as second-nature to her, having grown up with it whereas for someone like me, having never learned that way, anything beyond the basics marked a relatively new frontier. As it turned out, there had been nothing to fear – the level of support made everything much easier than expected, from accessing a wealth of resources to understanding how to approach a thesis. I initially toyed with the idea of employment law as my chosen topic as I have an increasing number of cases in that area. ut having served for over years as a member of the Adoption oard, I settled on a subject about which I am passionate birth fathers rights. I was fortunate to have r eoffrey hannon, chair of the Adoption Authority as my supervisor. His expertise proved invaluable and I am most grateful for his generosity with his time and for his guidance, particularly with regard to uropean and international jurisprudence. elving into new research not only broadened my knowledge of adoption outside of family law, but made me realise just how important it is for people to understand where they came from and, where possible, to have a relationship with their birth parents. or our rst assignment, we had to take a recent judgment and write an article about the case for a hypothetical law journal. y piece – irth athers ights A ew ra – was subse uently published in the Irish Journal of Family Law, which was hugely satisfying. The only difficulty was nding time to study. I found the research fascinating and became so engrossed in the material that I could miss my stop on the art If I tried to s uee e it in during lunch, time would y until one hour turned into three. ventually I began nishing work early on a riday so that I could spend the rest of the day writing. I loved every minute of it and still can t believe how easily it came, owing neatly into chapters. efore long, I was ready to submit my thesis – a full ve months early. There was no thought of potential grades afterwards, only a state of limbo that left me wondering, ow what ix weeks later, a phone call at work caught me off-guard I d received rst-class honours. It was hard to believe. I have since spoken at conferences on my thesis topic and it has been noted internationally, which came as an unexpected bonus. The moment that really stuck out came later. The aw ociety held its own intimate ceremony in lackhall, attended by the president of the High ourt. ( unnily enough, in our student days, r ustice Peter elly had generously helped me to nd

Life in the Law

Orlaith Traynor being presented with her LLM parchment by the President of the High Court Mr Justice Peter Kelly

an apprenticeship – though the rm in uestion refused to take a woman.) ut I also travelled to ewcastle for the full congregation at the university. y family came along for what they knew was a special moment for me. The auditorium was packed with other families from all over the world, brimming with pride for their loved ones. To be among the rows of graduates, dressed in cap and gown with a bright sash owing from the neck, ranks among my highest achievements. y eldest son, who had initially uestioned why I needed to do this at all, nally understood why I was so driven. any years ago, when my eldest brother an airline pilot graduated with a degree from the Open niversity, someone remarked to my mother that all her children now had degrees except me. he replied to the effect that my professional uali cation was worth more than a degree. y only regret is that she did not live to see the day that all eight of her little chickens had nally completed their journey through education. P

I felt like there was a gap I hadn t lled – a sense of completion that eluded me – even if it made no difference to anyone else the Parchment 15


New Practice Direction for Asylum, Immigration and Citizenship List of the High Court On 1st January 2019 the High Court published a new Practice irection (H ) which has caused unease throughout the community of solicitors and barristers practising in the areas of asylum, immigration and citizenship law. The Law Society also has concerns about H and has made a formal submission to the High Court on it. Elizabeth Mitrow sets out the new obligations of the new Practice Direction

H

applies only to the asylum, immigration and citizenship list of the High Court, which deals with approximately of all judicial review cases. Some of the obligations sought to be imposed by the H which have caused concern are very applicant is re uired to disclose and exhibit all information in existence relating to their immigration history, including any previous immigration applications ever made by the applicant and their family members within or outside this jurisdiction. Any documents not in the possession of the applicant must be exhibited where they can be procured by OI, etc. An explanatory note con rms that all previous immigration protection applications of an applicant are “presumptively relevant save in exceptional circumstances” but it is difficult to understand why this would be so. Applicants are re uired to swear an affidavit averring to the truthfulness and accuracy (or otherwise) of every statement or representation ever made in their immigration protection history in Ireland or any other country over the course of their lives even though these applications would not have been made on oath. Applicants are re uired to state their religion in

16 the Parchment

their “affidavit of averment” even if this has nothing to do with the judicial review. Applicants solicitors are re uired to explain the implications of the oath in respect of all past claims and representations. Applicants solicitors are re uired to provide an “affidavit of veri cation” to accompany every affidavit of the applicants in the proceedings, where they con rm that they have advised their client on the implications of every previous application including prior to when they were a client of the solicitor, and that they have explained the offence of perjury. An affidavit must be provided by the solicitor or commissioner for oaths who has taken the oath or affirmation of the applicant to the proceedings, or another person who was present to con rm that the oath was administered properly, specifying which religious text was used. It is difficult to see how a duty to disclose large volumes of data in respect of all previous applications possibly in other countries, which do not appear to be relevant to the immediate proceedings, is proportionate or reasonable. rom a practical viewpoint, this re uirement will be particularly onerous on solicitors acting for applicants. The documents sought will often be in a different language and may have to be translated, which is very costly. They may contain


Spring 2019 dsba.ie Elizabeth Mitrow is a Dublin-based solicitor specialising in immigration and human rights law

Litigation

It is difficult to see how a duty to disclose large volumes of data in respect of all previous applications possibly in other countries, which do not appear to be relevant to the immediate proceedings, is proportionate or reasonable

information of a very sensitive nature. Some practitioners are concerned by what they see as a clear implication, in this Practice Direction, that the court is concerned that solicitors are not acting in accordance with their existing professional duties, including their duties to administer oaths correctly on the basis of a very small number of non-asylum cases where there have been difficulties (perhaps only one where a wasted costs order was made). The inference has caused unease amongst immigration practitioners who take their work and their responsibilities very seriously indeed. There is also a concern amongst practitioners that the obligations sought to be imposed in this Practice Direction may be adopted by the courts dealing with other areas of law, such as personal injury litigation (where insurance companies have been seeking affidavits of veri cation from plaintiffs solicitors for some time). It is worth noting in this regard that H seeks to enforce its obligations on solicitors through exposure to an adverse (wasted) costs order pursuant to Order 99 rule 6 RSC for non-compliance. According to an explanatory note published subse uently on H , the purpose of H is “inter alia to give practical effect to the principle of uberrima fides (utmost good faith) applying to ex parte applications�. Practice Directions are intended

to be guidelines as to practice and procedure in the courts. The widely held concern about H is that it goes far beyond this function, imposing unnecessarily onerous obligations on judicial review applicants and their solicitors, impinging on their right to privacy and fettering their rights of access to the remedy of certiorari of poor decisions by public bodies. It may come as a surprise to many but the majority of judicial review applications in the asylum list are successful. In for example, court service gures reveal that relief was granted in cases, refused in following a substantive hearing, but that miscellaneous nal orders were also made in other cases and most signi cantly, cases were struck out post leave with no order which is, in general, a settlement with the decision being revoked and agreed costs. udicial review is of crucial importance in the Irish immigration system. With no administrative appeals tribunal, the High ourt alone has a supervisory role over overnment decision making, ensuring that administrative fairness, constitutional and human rights obligations are adhered to. Secondly, immigration and asylum applicants are often impecunious, and without legal aid available (outside a limited scheme for the international protection process) the prospect of High ourt costs enables legal representation for some of the most vulnerable participants in our justice system. P the Parchment 17


Lisa Joyce is a senior associate in the public and administrative law unit at Mason Hayes and Curran

Road Traffic Law

The Law and Electric Scooters More and more Irish commuters are embracing electric scooters which are seen as an affordable alternative to public transport and a means of avoiding traffic. An electric scooter looks similar to a child s kick scooter but has the added feature of having a built-in motor which can propel it to speeds of up to 30km/h. Lisa Joyce scoots around the law

However, if an electric scooter can be propelled from a stationary position by a motor alone, then it comes under the de nition of MPV, irrespective of engine capacity

18 the Parchment

U

sers should be aware that in Ireland, certain models of electric scooter are treated as equivalent to a motorbike or car, as they are considered mechanically propelled vehicles ( P ) under the oad Traffic Act ( TA) as amended. This means that the usual legal requirements applicable to MPVs also apply to certain electric scooters. For example, the need to have a licence, tax and insurance, wear a helmet and ensure that the vehicle is registered and roadworthy. The TA de nes an P as including “a vehicle the means of propulsion of which is electrical”. The Garda och na has clari ed that, if an electric scooter requires pedalling or an initial manual scoot to take off, and the motor only kicks in once already in motion, it is not considered an MPV. However, if an electric scooter can be propelled from a stationary position by a motor alone, then it comes under the de nition of P , irrespective of engine capacity. Users of such models in any public place must therefore, ensure that the scooter is roadworthy, have a licence, tax and insurance, and wear a helmet. Also, with the exception of motorised wheelchairs, MPVs are not permitted in bike lanes or on footpaths and must be used on the road.

lanes. The Road Safety Authority has recently reiterated that it is illegal to ride scooters in bike lanes. Dublin City Council has reportedly also called for an outright ban of electric scooters on public roads and bike lanes. However, the position in relation to their use on footpaths remains unclear. Legislative drafters could also look at the approach in other countries. Indeed the Department of Transport has asked the Road Safety Authority to carry out research to see how other EU member states have regulated electric scooters. In Belgium for example, electric scooters are regulated in the same way as bicycles, once they do not exceed a maximum speed of 18km/h. In France electric scooters can be used on footpaths if they do not exceed a maximum speed of 6km/h. However, scooters capable of greater speeds are restricted to bike lanes. A new law is also proposed to require users to hold insurance and a licence equivalent to that for small motorcycles. Lastly in San Francisco, where electric scooters are immensely popular, they have been banned on footpaths, but can be used in bike lanes. Companies also offer electric scooter rentals where they can be picked up and dropped off in different locations. Given the popularity of bike rental schemes in Ireland, such an initiative could well be on the horizon here.

A Call for Change

Conclusion

The current legal position in Ireland could easily give rise to confusion for users (and conse uent difficulties in enforcement), as certain models are treated differently, even though they do essentially the same thing. In addition, some users are advocating for legislative change to incentivise the use of electric scooters. This includes elected politician Noel Rock, TD, who commutes to Dáil Éireann daily by electric scooter, and has highlighted their environmental bene ts. As of yet however, draft legislation has not been published. Such legislation could usefully regulate which models if any, can be used on footpaths and bike

Electric scooters are here to stay but it remains to be seen how the legal landscape will respond to this new trend. At present, the law in Ireland applies differently depending on the technical speci cations of particular models. There are commuters using electric scooters daily who are undoubtedly unaware that they may be required to register, wear a helmet, and have a licence, tax and insurance. Regulation is also lacking on when and where such scooters can or should be used. For the sake of scooter users, other road users, pedestrians and the environment, it is hoped that some degree of regulation is forthcoming in the short term. P

The Law


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Appointing a Director: Issues to Consider A director can be appointed in several different circumstances whether appointed at the time of incorporation of a company or appointed afterwards (either to ll a vacancy or as an additional director). A director can also be re-elected at the expiry of his or her term of service. rances leahene considers some of the legal re uirements and issues in the appointment process

Legal Considerations The appointment of a director is governed largely by the ompanies Act (the “Act�) and a company s constitution. A private company limited by shares may have a single director. Other types of Irish company need a minimum of two directors but the Act does not prescribe a maximum number. ertain persons, such as a body corporate or an undischarged bankrupt or a person under the age of years, cannot act as a director, nor can a person who is dis uali ed from doing so under the Act. First Appointments The rst directors are appointed at the time of registration of the company and the persons named in the form A will be deemed to have been appointed as the rst directors. very Irish registered company re uires at least one director to be resident in a member state of the A, failing which, an insurance bond is re uired or a certi cate (from the egistrar of ompanies) that the company has a sufficient economic link with Ireland is necessary. There s a limit on the number of directorships a person may hold in Irish registered companies. ubject to exceptions, a person may not hold any more than directorships in Irish companies (other than P s). Subsequent Appointments In addition, subse uent appointments of directors are governed by the constitution of the company but any shareholders agreement should also be considered. The company s constitution may specify a minimum number of directors and also may impose a maximum limit. If the constitution does prescribe a maximum, appointments in excess of that number will generally be void. Typically, the constitution will provide for the board 20 the Parchment

itself to appoint a new director to ll a casual vacancy, or to appoint additional directors up to the maximum number permitted by the constitution. The board will need to pass a resolution in the normal way ensuring that proper notice of the meeting is given, that it is uorate and the resolution is passed by a majority of the votes cast (including any uali ed majority for which the company s constitution or any shareholders agreement may provide). Alternatively, a written resolution may be used if permitted by the company s constitution. A director must signify his or her consent to being appointed. A form must be led at the ompanies egistration Office within days of the appointment. Expiry of Office Term The Act re uires directors appointed by the board to retire at the next annual general meeting and seek reappointment by the shareholders but the constitution may alter this default provision. The company s constitution will typically prescribe the term of service for directors. This will include the duration in office before becoming eligible for re-election and when the re-election will happen. lections or re-elections of directors following retirement by rotation, and the removal of directors are reserved to the company in general meeting.

Contractual Considerations If the director is to hold an executive position he or she should also be given a service agreement setting out the terms of the directorship (which may or may not be subject to shareholder approval). The agreement must be in accordance with employment law and should cover matters such as the role of the director and the re uirement for the director to comply with the internal policies and procedures


Spring 2019 dsba.ie Frances Bleahene is a senior associate in the corporate department at McCann Fitzgerald

Company Law

of the company. The agreement should address controls and limitations on the director engaging in business outside of the company and, should include provisions on disclosure of con dential information and intellectual property matters. The non-executive director should also have written terms of engagement so that, at the very least, an appointment letter should include a job description and commitments on what he or she is permitted to do with the company s property and opportunities. A director should be reminded to ac uire the share uali cation (if any) speci ed in the constitution.

Conflicting Appointments A director is permitted to also serve as the company secretary. However, if something must be done by both the company secretary and by a director, then the same person may not ful ll both roles in respect of that particular procedure. urther, a person may not be both a director of the company and the statutory auditor of the company. ost directors will act as director or non-executive director of more than one company which may be regarded positively by the companies concerned because this will broaden the experience and network of the director and most constitutions will allow this. ompanies need to be very clear at the outset, on how any such outside interests are to be managed, not only because of potential con icts of interest but also because of the need for the director to have sufficient time to perform his or her role in the company. This can be more of a consideration for non-executive directors. The time demands on a director will depend on a number of circumstances such as the company s si e, the growth stage at which that company is at, whether it is a private company, a publicly-listed company, or a subsidiary. emands will also depend on whether the company is in a regulated sector such as nancial services. egardless, expectations for time commitments should be agreed in advance. xpectations will also depend on whether the role being assumed is that of an executive director or a non-executive director bearing in mind that the Act does not distinguish between the roles in terms of duties and liability.

Recruitment irectors are a key component of the corporate governance framework so their recruitment demands a thorough and professional approach. ome companies will establish a board level nomination committee as part of their overall corporate governance structure. The main role of this subcommittee will be to identify potential directors. In identifying potential directors, the board and subcommittee (where relevant) should be clear about the attributes it re uires in a director, being particularly mindful of the current focus on corporate culture and what is the “tone from the top� combination of skills, experience and knowledge it re uires on the board and valuable insights and perspectives that a diverse

and inclusive board will bring to the business. Once identi ed, the board should ensure that the prospective director is aware of what will be his or her powers, duties and responsibilities and is aware of the law and practice relating to matters such as disclosures of personal interests, con icts of interest, insider dealing (where relevant) and related-party transactions. The company secretary will typically be re uested to organise an induction exercise for a new director to cover these issues. All directors should be clear about his or her role and whether the role is a performance role or a conformance role or both, and what resources are to be applied to either both. Whether the director is responsible for ensuring that the company complies with the law or whether the director is responsible for adding value in terms of strategy (or both), will impact on the resources and support that the director will need to perform that role and the responsibilities that go with it. It is only then that any director s potential value can be matched with their talents and the needs of the company.

Additional Considerations Additional considerations will apply to the appointment of a director to a board if the company is regulated by the entral ank of Ireland ( I). There are speci c re uirements for example, in the orporate overnance e uirements for redit Institutions concerning criteria for director independence, composition of the board (si e and expertise), time commitments of directors and limits on the number of directorships held. Additional processes will apply if the director is to be appointed to a pre-approval controlled function has shares listed on an exchange as the rules of the exchange need to be borne in mind. The orporate overnance ode for example, sets out re uirements for the appointment of new directors and the re-election of directors as well as for the length of service of a board, approval of service agreements and remuneration of directors. P

If something must be done by both the company secretary and by a director, then the same person may not ful ll both roles in respect of that particular procedure

the Parchment 21


Kenan Furlong is a partner in the litigation and dispute resolution team at A&L Goodbody

Litigation

Supreme Court Recognises that Criminal Trials may be Prohibited for ‘Officially Induced Errors’ Officially induced error relates to circumstances where a person relies on incorrect advice from an official authority as to the law, resulting in the commission of a criminal offence by that person. enan urlong analyses a recent upreme ourt case which has endorsed the view that officially induced errors are an exception to the rule and that ignorance of the law is not a defence

Proof of the re uisite elements of unfairness - to lead a trial judge, to block a prosecution - must be established by the accused on the balance of probabilities, not beyond a reasonable doubt

22 the Parchment

Officially Induced Error

Stringent Test

The upreme ourt last week recognised for the rst time in D v asey [2 1 ] IES , that a criminal trial can be prohibited due to officially induced error. In agreeing to hear the appeal in this case, the upreme ourt had certi ed the uestion of the availability of this defence in this jurisdiction as a point of general public importance. A plea of officially induced error is an exception to the rule that ignorance of the law does not excuse criminal conduct. It means that where a person relies on advice given by an official authority and commits a criminal offence as a result of reliance on that advice, they may be able to avoid a guilty verdict. However, the upreme ourt heavily limited the circumstances in which officially induced error could be relied on and there are a number of hurdles to be overcome in order to plead it successfully.

Though the upreme ourt recognised a plea of officially induced error, it sets out a stringent test to be met which limits the scope of the plea. Officially induced error is a very narrow exception to the rule that ignorance of the law does not condone criminality. Proof of the re uisite elements of unfairness - to lead a trial judge, to block a prosecution - must be established by the accused on the balance of probabilities, not beyond a reasonable doubt. To raise this plea, the accused must precisely describe before the trial judge what he did, rather than evading responsibility through not admitting conduct. In particular, for officially induced error to prohibit a prosecution, the accused must prove That he went in good faith to seek legal advice from an authority that a reasonable person would see as possessing ostensible authority to advise on whether a proposed course of conduct was not lawful That the proposal about which legal advice was sought was speci c, not vague, and described accurately the conduct which is the subject matter of the later criminal charge That what the official advised was speci c and amounted to legal advice which clearly and une uivocally authorised the proposed conduct as a matter of law That the advice covered the situation in issue That the advice was not such as to reasonably put the accused on notice to make further en uiries That the advice must have been accepted honestly by the accused and was such that a reasonable person was likely to act on it and That there was no deviation from the conduct apparently authorised in the commission of the offence. The parameters the upreme ourt has put on a plea of officially induced error mean that it will likely apply only in exceptional cases. P

Procedural Issue, not Substantive Defence In delivering the judgment of the ve-judge court, harleton held that officially induced error can be an answer to a criminal charge. However, it is not a substantive or excusatory defence that vindicates the accused or nds the criminal conduct at issue did not occur. ather, it amounts to a legal objection to the continuation of the criminal process similar to claims to prejudice arising from prosecutorial delay missing evidence. In this regard, the court followed authorities from anada rather than the (where it is a full defence). The essence of a plea of officially induced error is rooted in the onstitution s guarantee of procedural fairness and trial in due course of law. It amounts effectively to an argument that in the circumstances a guilty verdict would amount to an affront to justice. It is a matter for the trial judge, not the jury, as to whether to allow a plea of officially induced error.


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Third Edition of Civil Procedure in the Circuit Court eith Walsh reviews the latest edition of Civil Procedure in the ircuit ourt, by arl owling and usan artin

Civil Procedure in the Circuit Court, 3rd edition, Karl Dowling, Susan Martin, (Round Hall, 2018, 803 pages)

At the book launch was Ms Justice Aileen Donnelly with co-author Susan Martin

24 the Parchment

The 3rd edition of this volume had a lot to live up to, coming as it does ve years after the award winning nd edition. Other challenges faced by the authors are the retirement of co-author, aren c onnell solicitor and her replacement by usan artin and the signi cant changes to the Circuit Court rules since the previous edition. The authors have risen to meet the challenge and from the very rst page the reader is assured they are in the very capable hands of two authors in arl owling and usan artin who guide them expertly and in plain nglish through what is often the ma e of the Circuit Court rules. Innovations in this edition include a new debt collection chapter which is one of the most practical and considered guides to debt collection practice procedure currently available and bears the ngerprints of As very own usan artin. The changes to the probate jurisdiction are covered with the obvious expertise of a master probate practitioner and it is no surprise to learn that arl owling was responsible for this area of the book. There is excellent and practical analysis of the revised rules on family law and employment law. The updated rules on landlord and tenant law are also covered in detail. The duties and powers of the ounty egistrar are set out with such clarity and precision that it is no surprise to read in the acknowledgements that the authors thank the ounty egistrar for ublin, ita onsidine for her


Spring 2019 dsba.ie

Book Feature

This is an essential text for any solicitor engaged in litigation in the Circuit ourt at any level

Authors Karl Dowling BL and Susan Martin at the recent book launch

updating of the chapter on the duties and powers of the ounty egistrar. orothy ollins , who will be well known to many A members as the go-to licensing junior counsel updated the intoxicating li uor licensing chapter which is a model of clarity in what can often prove to be a very technical legal area. In addition to the areas above, the authors deal comprehensively with the jurisdiction of the ircuit Court, commencement of proceedings, personal injury actions, service, appearance, pleadings, parties to proceedings, third-party proceedings, joinder and transfer of actions, discovery and inspection of documents and interrogatories, security for costs, striking out, dismissal, discontinuance and settlement of proceedings, lodgements and offers, trial and evidence, appeals and case stated, judgment, orders and enforcement, costs, planning and miscellaneous. An example of the usefulness and expertise conveyed by the authors is in relation to their commentary on Order r. Where no rules provided in these rules . Where there is no rule provided by these rules to govern practice or procedure, the practice and procedure in the High ourt may be followed. - It is important to note that Ord. r. only applies in circumstances where the do not provide for a procedure, rather than where the makes provision for a procedure that is

different from that provided for in the rules of the uperior ourts. In the latter circumstances it is the that apply. The case of O’Rourke v Sunday World Ltd (1 ) 1 I.L.T. 255 is then cited in support of this statement. This is an essential text for any solicitor engaged in litigation in the ircuit ourt at any level as there s no procedural uestion which can remain unanswered once this volume is consulted. It is a work of exceptional scholarship and clarity and a great credit to the authors who have completed it with no little amount of effort but also, with a little help from their friends who they most properly acknowledge and thank. It is entirely appropriate that one of the most respected Circuit Court practitioners and former doyen of the midland circuit, now President of the ircuit ourt, r ustice roarke should state in his foreword this book will be of great interest to those engaged in litigation before the Circuit Court‌ I highly recommend this book as a legal resource by two outstanding legal practitioners – usan artin, a highly respected and in uential solicitor and arl owling, a barrister with an extensive practice not least in the eld of probate . High praise indeed, but fully deserved for this volume and its authors who have provided a much needed resource for Circuit Court practitioners. P eith Walsh, eith Walsh Solicitors the Parchment 25


Get Closer To Your Clients Digitally – or Somebody Else Will Guy Fagan advises that the key to success in the digital landscape is not size or budget, it is to get closer to your clients than ever before. He outlines some effective digital strategies and tools to achieve this

W

hen was the last time that you didn’t search online for a service or a product that you needed? It’s by far the most convenient way to nd information on services and businesses to use. Add into this mix that most people have a smartphone with the entire internet at their ngertips. olicitors services are no exception. What can Irish solicitors learn from the industries where digital disruption has occurred? The winners are those who get closest to the client, the winners are now those who own demand (not supply), and the power is in platform plays. Own the platform that enables buyers and sellers to meet in a close approximation of the economic ideal of perfect competition and you are unstoppable. A good example of owning the platform is in the drinks sector, discovery apps like Hello Vino offer consumers the ability to specify wine characteristics that they like and are then matched with a wine tailored to their requirements. What would your platform look like?

26 the Parchment

Digital Marketing Strategies for You Without question, the most important thing you and your rm can do is to get closer to your clients than ever before. Any digital marketing agency will tell you that. Find anything that reduces the level of client understanding or responsiveness and eliminate it. Increase your channels of communication and eliminate all barriers to client enquiry. Remove friction. Figure out ways you can own demand and look for effective ways to leverage accessible technology, in particular, your website. Your website should form the core of any digital marketing activities you undertake and you too can “embrace the individual” by building your own digital ecosystem.

Determine Your Target Audience Before implementing any digital marketing strategy, it is important to identify who the bullseye target audience is. The more you know and understand their demography, their income and employment the more you can understand the pain points of your target client


Spring 2019 dsba.ie Guy Fagan has been providing digital services for over 19 years. He has founded, grown and sold two digital agencies to date. For more information go to www.guyfagan.com

persona. When you fully understand these pain points and their challenges, the easier it will be for you to align your digital strategies to target your bullseye client. Give them a name, an age, a gender. Learn what they are searching for online, what websites do they visit, what are their social networks of choice? The better you know who your desired clients are, the easier it is to attract them and appeal to their needs. With your target audience identi ed and pro led you can set the landscape so as to encourage them to click on to your website. Knowing your audience will allow you to position yourself as the “natural choice” for them.

Be the Customer not the Solicitor Now that you have your bullseye client persona, it’s important to put yourself in their shoes. What will they type into Google when looking for a service that you provide? With that in mind, it’s easy to see that legal language doesn’t always make for the ideal search keywords since most people don’t use legal terms in

Practice Management

daily life. se of the word “solicitor” or “law rm” after the service and adding a geographical tag such as “Dublin” will narrow the search criteria and give you a better chance of being found. Talk more about your services than about yourself. Talk about case studies and where possible, your clients and how you have helped them. Try to strike chords of recognition with the site visitor. Use video where ever possible, being conscious of the large number of people that will visit your website on mobile devices and may prefer to watch a video than read reams of text. Offer a schedule, a call back feature, offer live chat, offer ways and channels of increasing communication and facilitating engagement. Use strong calls to action on your pages.

Relevant Content People expect solicitors to be experts, so be the expert. our site needs to re ect that by demonstrating the knowledge and experience of your team. everage that. Individual team member pro le the Parchment 27


Digital technology gives us increased ability to lift the curtain and see the truth behind these myths. After all, we live in a world of online reviews and platforms such as Trustpilot which offer us uick access to opinions

pages are among the most visited pages on any solicitor’s website. Give your clients a reason to believe that you might be the best and natural choice to represent their needs and win their cases. Consistent steady content such as blogs, news, publications and insights are a great way to keep your website up to date and are very effective tools to engage with new and existing clients.

Website Landing Pages anding pages are hugely signi cant tools to convert site visitors to clients. They should be almost like standalone home pages however, only discuss that one legal service on that one page. All your calls to action such as phone, schedule a call back, watch a video and live chat need to be appropriately placed on that page. The key take out here is that these pages are all about being focused and relevant to a single particular need. Example: site visitor persona, Mary, suffering from bullying in the workplace does a Google search and clicks on a link to your site. he clicks on the “bullying” headline under employment law and is brought to a standalone landing page with a brief description about bullying in the workplace, is then possibly prompted to watch a 10/15 second video so as to create recognition and empathy, the video ends with an invitation to click on a schedule a call back, or a make a call now, or a prompt to ll in a form, or click on live chat for more information. Video helps to convey humanity and a personal touch. It builds trust quickly and keeps the site visitor on the page for longer. The use of a visual text testimonial on the page along with association and award logos will build trust and help to remove the barriers to the site visitor enquiry. Keep the text on the page to a relevant minimum as ary is suffering and she needs to nd a solution right now and not spend her time comparing other rms offerings and trying to decide which is better.

Mobile Responsiveness If your site is not mobile responsive these days you are well behind the curve. Your website needs to be as effective on mobile as it is on desktop. The smart law rm adapts to utilise the tools and technology available to them. There are subtle differences between site visitor behaviour from visitors coming from desktop versus those visiting from mobile devices. There is a greater urgency for information from those visiting from mobile devices and the user interface of the mobile site needs to be structured in such a way so as to deliver the best user experience and facilitate these site visitor needs and encourage easier contact. Increase your contacts and you will have an opportunity to increase your client conversions. 28 the Parchment

Speed low loading of a web page will frustrate site visitors, even those that are existing clients. Tolerance for slow sites has decreased to the point that site visitors will bounce off your site rather than spend their time waiting for a page to load. The generally accepted page load time is circa 1.5 seconds or less. If you fail to meet that metric, that’s one problem. The other problem is that a slow loading website can also drive down your ranking on Google search result pages. You can utilise all the best digital marketing strategies but if your website isn’t fast, you are running the very real risk of losing business that you never knew you could have had.

Email Marketing mail marketing remains a really effective tool to maintain regular contact with your clients. However, it important that these communications never become spam material. Offer valuable insights, updates on you and your rm and information that the receiver will value. If you have nothing to say, then say nothing rather than devalue your brand. eek feedback from trusted advisors before you send each email newsletter. ometimes what you want to say is not necessarily what your clients are interested in hearing!

Google AdWords/PPC Google AdWords delivers new clients cost effectively. It will show your ad to people and organisations already in the research stage and who could be guided into your legal services sales funnel. This is an opportunity to become visible to people who are already looking for a solicitor who offers a particular legal service that you and your rm provide.

Building Trust Advertising used to be about building myths; for example, the idea that buying a certain deodorant would make us more attractive. We are still prone to buying into these myths but only until we can prove them to be objectively false. Digital technology gives us increased ability to lift the curtain and see the truth behind these myths. After all, we live in a world of online reviews and platforms such as Trustpilot which offer us uick access to opinions. In an increasingly connected world, a law rm s communications, team members and services are now more and more interconnected and as a result, our relationships with solicitors’ rms are changing. irms are now more than what they say. They are what they do. Clients can be more cynical about law rms and the stories that they tell. As a result, the solicitors that will ourish in the future will be those who focus on the client in order to create positive client experiences and services that talk meaningfully and truthfully about the rm s brand. The message here is to get close, get real close to your clients or somebody else will. ee www.guyfagan.com dsba-members P


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Important Legislative Changes in Personal Injuries Litigation With recent changes to the law, Stuart Gilhooly warns personal injury practitioners to be alert to the new legal provisions which further impact on personal injury litigation

T

he much-vaunted overnment programme for insurance reform continues apace and has resulted in well signposted but signi cant changes to the ivil iability and ourts Act (“the Act”) and to the PIA Act (“the Act”). The rst and possibly most important amendment was passed by the somewhat unusual vehicle of ection of the entral ank ( ational laims Information atabase) Act . Section 8 of the Civil Liability and Courts Act 2004. The amendment to this important re uirement changes the obligation to serve a letter from two months to one month and removes the saver “or as soon as practicable thereafter”. ost signi cantly, it now states that the court “shall” rather than “may” draw inferences from a failure to do so. The new ection ( ) now reads as follows (underlining added for emphasis) ( ) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before the expiration of one month from the date of the cause of action, on the wrongdoer or alleged wrongdoer, stating the nature of the wrong alleged to have been committed by him or her, the court hearing the action, shall – (a) raw such inferences from the failure as appear proper and (b) Where the interests of justice so re uire (i) ake no order as to the payment of costs to the plaintiff or

30 the Parchment

(ii)

educt such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate. This change came into being on anuary and applies to all accidents that occur on or after that date. The effect of this is to in fact, make “without reasonable cause” now the most important words in this section. ew rules of court (because the section now contains a mandatory re uirement) state that all personal injuries summonses issued for accidents occurring on or after anuary , where such a notice has not been served within the one month period, must provide an explanation as to what “reasonable cause” exists to explain such a failure. If none is provided, or such explanation is not accepted by the court, then inferences and costs deductions would seem inevitable in most cases. Section 14 of the Civil Liability and Courts Act 2004. Of e ual importance is the change to ection of the Act. This section currently re uires, inter alia, that a plaintiff and defendant shall verify all pleadings, and the plaintiff all further information, provided by way of affidavit and lodge the affidavit within days of delivery of such pleading or information. The new ection ( )(a) now mirrors the penalty provisions in ection for failure to do so stating the court shall (a) raw such inferences from the failure as appear proper and (b) Where the interests of justice so re uire – (i) ake no order as to the payment of costs to the plaintiff or


Spring 2019 dsba.ie Stuart Gilhooly is a former President of the Law Society and DSBA. He is a partner at HJ Ward Solicitors Harold's Cross where he has his personal injury practice

(ii)

educt such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate. This change also came into effect on anuary and applies to all pleadings and information provided after that date. The second piece of signi cant legislation is the PIA (Amendment) Act which will come into force on April . All practitioners in the area are advised to read it carefully and in full but the key provisions are as follows Section 51C – this new provision penalises claimants (and in limited cases respondents) who have not fully co-operated with the PIA by providing information or documents to them or their experts in the form of for example, special damages, further medical information such as I scans, previous injuries or details of all other claims made, when re uested by assessors. In addition, failure to attend the PIA medical examination may also mean being penalised under the section. This section does not contain a mandatory re uirement in the manner of the above amendments to the Act but states that in the event of failure to comply with such re uests or attend a medical examination, the court may order that no order as to costs in favour of the offending party may be made or alternatively, an apportionment of any such costs. This re uirement applies to all applications made under ection after April and all applications made before that where such re uests had not already been made.

Section 13 – there is no longer a re uirement to lodge a medical report with the application form in order to stop the statute from running. The application of itself is deemed to suffice for that purpose. However, the amendment to section now states that a preliminary notice will be served on a respondent in circumstances where only the application form is provided and the formal ection notice which sets the -day period in motion will not be served until a medical report is provided and the PIA administration fee (currently ) is paid. Section 50 – as a result of enehan v T Taverns ( I ), the provisions of ection applied to all respondents made under a ection application, no matter when they were joined to the application. In other words, the date of the initial application stopped the time for all respondents even if they were added years later. This anomaly has now been corrected so it will now mean that the actual date of joining a new respondent to an application already made will be the date on which the statute stops for the purposes of ection of the Act as opposed to the date of the original application. Section 54 – the ook of uantum must now be reviewed from time to time and revised at least every three years. This summarises the main alterations. Please read the PIA Amendment Act in full and be aware of the dangers of the new costs provisions in the Act. It isn t getting any easier P

Litigation

The amendment to this important re uirement changes the obligation to serve a letter from two months to one month and removes the saver “or as soon as practicable thereafter”

the Parchment 31


The New Trade Mark Regulations: What Brand Owners Need to Know If you own or use registered trade marks in Ireland, then the new uropean nion (Trade ark) egulations (the “ egulations”) may affect you. The regulations which amend the Trade arks Act , came into force on th anuary . olm aguire and Olivia ullooly say that the new regulations bring about some noteworthy and mostly positive changes for brand owners

You can (in theory) Apply to Register more Types of Trade Marks Previously an Irish trade mark could only be registered if it was “capable of being represented graphically”. This meant that it was extremely difficult, if not impossible, to apply to register “non-traditional” trade marks such as sounds or multimedia marks. The regulations remove the requirement for graphical representation – you can now apply to register “words or designs, letters, numerals, colours, the shape of goods or of the packaging of goods, or sounds”. This gives brand owners the opportunity to register more aspects of their brands like colours, shapes or sounds. However, the trade mark applied for must be “sufficiently clear and precise” which can be a difficult threshold to meet in practice.

You can Stop Infringing Acts Earlier in the Supply Chain If a trade mark owner can demonstrate to a court that there is a risk that their trade mark is being used for ancillary or preparatory infringing acts, such as being affixed on packaging, labels or tags for counterfeit or infringing goods, then the trade mark owner can rely on the regulations to seek to prevent such activities. For example, they can seek an order to prevent the placing on the market or importing or exporting of such infringing items.

Trade Mark Owners have Improved Rights to stop Counterfeit Goods Transiting through Ireland Previously in order for Irish customs authorities to seize counterfeit goods that were passing through Ireland, the trade mark owner had to prove that the counterfeit goods were intended to be put on the market in the . This meant that it was difficult to successfully secure the seizure of such goods if they were transiting through Ireland to a country outside 32 the Parchment

of the . or example, counterfeit handbags being exported from Turkey through Ireland and onwards to Canada. nder the regulations, trade mark owners are entitled to prevent goods (and their packaging) that infringe their trade marks from being imported into Ireland from outside the EU. It is then up to the importer to prove that the trade mark owner is not entitled to prohibit the placing of the goods on the market in the country of nal destination. Taking the above example, this means that if the trade mark owner requests that the authorities seize the infringing handbags in Ireland, the importer would have to prove that the trade mark owner is not entitled to stop the bags being sold in Canada. While these new provisions are intended to make it easier for trade mark owners to stop and seize counterfeit goods passing through Ireland, they are still left in a weak position if they do not have sufficient rights in the country of nal destination. The regulations sit alongside existing laws that give Revenue the power to seize and destroy small consignments of counterfeit goods sent by post.

The Statutory Rights Afforded to Licensees are Narrowed efore the regulations were commenced, a nonexclusive licensee of a trade mark could, subject to the terms of the licence, bring infringement proceedings against a third party if the licensor refused to take proceedings within two months of being called upon to do so. nder the regulations, a non-exclusive licensee can only bring infringement proceedings with the consent of the licensor – there is nothing the nonexclusive licensee can do if the licensor fails to take action when called upon by the licensee, or where the licensor does not consent to the licensee taking an action. Therefore, matters relating to infringement of the licensed mark should be dealt with in the licence.


Spring 2019 dsba.ie Olivia Mulooly is a partner and Colm Maguire is an associate in the technology and innovation team at Arthur Cox. The authors thank Ciara Cosgrave, trainee, for her contribution to this article

The rights of exclusive licensees are also narrowed under the regulations. Previously, exclusive licensees could, subject to the terms of the licence, bring infringement proceedings in their own name – they did not have to notify the owner. The regulations have changed this position: exclusive licensees must now give the owner “formal notice” before issuing proceedings; the exclusive licensee can then only bring the proceedings if the owner does not bring the proceedings “within an appropriate period.” However, the regulations are not all bad news for licensees – they now have an express right to intervene in infringement proceedings brought by a trade mark owner to obtain compensation for damage suffered by the licensee due to the infringement.

The Grounds on Which to Oppose a Trade Mark Application are Limited In an unusual move, the regulations now limit the grounds on which a third party can oppose an application for registration to “relative grounds” only. This means that a third party can now only oppose an application if it has prior trade mark rights (e.g. by arguing that the mark applied for is confusingly similar to its prior registration) and not based on the characteristics of the trade mark being applied for, otherwise known as “absolute grounds”. Examples of absolute grounds include that the trade mark being applied for is descriptive, generic or consists exclusively of signs that designate the kind, uality or geographical origin of the goods or services. The Patents Office can still object to an application on absolute grounds. However, if a third party wants to raise absolute grounds against an application, it must wait until the mark has been registered and then seek to invalidate the registration on absolute grounds.

Trade Marks Automatically Transfer with a Business An aspect of the regulations that will be of interest to

Intellectual Property

trade mark and transactional lawyers alike is the new presumption that a “transfer of a whole business shall include the transfer of the trade mark, except where there is agreement to the contrary, or circumstances clearly dictate otherwise”. Therefore, in an asset sale of the whole of a business, both buyer and seller should consider the impact of this provision on their commercial objectives, as a seller may want to retain the trade marks attaching to the business, or a buyer may want to exclude the trade marks from the assets being ac uired. Accordingly, the transaction documents for the sale of the whole of a business should clearly address this new presumption.

Infringing Acts are Expanded The “own name” defence is no longer available to corporate entities; the regulations limit it to natural persons, meaning that only individuals can use their own name without infringing an identical or confusingly similar name that is a registered trade mark (e.g. myths or c onald s). Another related change is that using a trade mark as part of a trade or company name can now constitute an act of infringement. inally, the regulations explicitly provide that the use of a trade mark in comparative advertising in a manner that is contrary to the isleading and omparative arketing egulations (e.g. denigrating or taking unfair advantage of a trade mark) constitutes an act of infringement.

Comment The regulations should be welcomed by brand owners for enabling the registration of non-traditional marks (where they are clear and precise), introducing additional anti-counterfeit measures and expanding the range of infringing acts. However, both exclusive and non-exclusive licensees, and any person who seeks to oppose the registration of a trade mark, will nd their rights diminished by the regulations. P

Regulations are not all bad news for licensees – they now have an express right to intervene in infringement proceedings brought by a trade mark owner to obtain compensation for damage suffered by the licensee due to the infringement

the Parchment 33


Photography: Paul Sherwood

Moya Quinlan – a Trailblazer Ahead of her Time Stuart Gilhooly recalls the late, great Moya Quinlan and pays tribute to this great solicitor who will be remembered as a leader, a pioneer and one of a kind

M

oya Quinlan was always a reluctant feminist. But if quietly slipping into a man’s world without anyone batting an eyelid was an early form of feminism, then she was a world leader. In 1980, when the legal profession around the world was still predominantly the preserve of males from a certain educational background, Ireland produced the rst female president of its aw ociety in Moya Quinlan. Ireland was not known at the time for its progressiveness – we were still ten years away from our rst woman president and have not had a female Taoiseach to this day – the achievement was so outside the expected norm that it would be another 21 years before the solicitors’ profession elected another woman to the role. Moya who died aged 98 on 15th February 2019, was quite simply decades ahead of her time. Always was and the years never caught up. Her father Joseph H Dixon was a solicitor with his own practice and Moya caught the legal bug early. It didn’t take long to realise that she was cut out for more than that and in 1942, when the world was at war, Moya Quinlan was busy burying stereotypes. our years later, she uali ed as a solicitor as one of four women in her year and joined her father in practice. At that time, there were no more than ten women practising as solicitors in the country. She married Michael Quinlan, an accountant in 1952. Their two sons, Michael Jnr and Brendan arrived in 1954 and 1955 but the traditional mother in the home role favoured by the huge majority of Irish women at the time, was anathema to her. If she had been a civil servant, statute would have barred her from working outside the home between 1958 and . Instead, her practice ourished but that was never going to be enough on its own.

34 the Parchment


Spring 2019 dsba.ie Stuart Gilhooly is a former President of the Law Society and DSBA. He is a partner at HJ Ward Solicitors Harold's Cross and a former editor of the Parchment

It was in her nature to give something back. The rst of many precedents was set when she became the rst lady council member of the aw ociety in . Moya’s primary driving force was to create a base for the solicitors and their apprentices to gather and learn. Along with the late Peter Prentice, she oversaw the opening of the aw ociety premises at lackhall Place in 1978. At the start of that decade, she had also joined the council of the Dublin Solicitors’ Bar Association. In a quite remarkable two years between 1979 and 1981, she went on to carry out the presidential roles of both the A and the aw ociety successively. It is an unprecedented feat and one unlikely to be ever again contemplated, let alone achieved. Over this period Moya remained in practice as a solicitor, and while she remained a loving and doting mother to her two boys, she expanded this role to an entire profession. A matriarchal gure with a softly spoken but determined manner, Moya inspired both respect and awe. She also unconsciously, inspired a revolution among the increasing number of women beginning their careers. Where before they might have seen barriers and glass ceilings, now opportunity beckoned. If Moya could have it all, couldn’t any woman? And then tragedy struck. Her beloved husband Michael, died suddenly on 21 December 1981, just two weeks after she relin uished the aw ociety presidency. Despite the obvious devastation, she doubled down and worked harder. She went into partnership with her son Michael and her erstwhile apprentice Andrew Smyth, both of whom would eventually succeed her as aw ociety president. She continued to blaze trails across the legal landscape. Appointed to the Employment Appeals Tribunal as a vice-chairperson, not long after its establishment, she remained a member until her

ninth decade. he also replaced s ustice ary affoy on the ent Tribunal and was appointed to the egal Aid Board. As the millennium turned, most octogenarian women with a record of service and achievement of this kind would have put their feet up, played bridge and contemplated retirement. Not Moya Quinlan. She remained a member of the aw ociety ouncil until the age of , some years after her rst election. oone – man or woman – has come close to this longevity. Working in the office until her early nineties, only in recent years did she nd time to relax and smell the roses. As her health deteriorated, she stayed around long enough to see Michael add another precedent to a list that may never be overtaken the rst mother-andson president combination of the aw ociety became a reality as he took office in . Her service to the aw ociety was recognised by way of a portrait by artist David Hone, painted in 2004 and hung in the ouncil hamber. Her colleagues in the profession rewarded her with the ifetime Achievement Award in at the inaugural Irish aw Awards. When she was interviewed shortly afterward by The Irish Times, she was typically modest in response. “In all my years of practice,” she said, “I have never felt I was either special or that I was in any way unique; I was just a solicitor who happened to be a woman, that’s basically it.” We often don’t see ourselves as others see us. Moya Quinlan genuinely didn’t understand the fuss. Which was part of her charm. But in 2019, in a profession where per cent are now women and the aw Society will later this year elect only its fourth female president, Moya will be remembered as a leader, a pioneer and one of a kind. P

Tribute

In 1980, when the legal profession around the world was still predominantly the preserve of males from a certain educational background, Ireland produced the rst female president of its aw ociety in Quinlan

oya Quinlan, born 2 June 1 2 , died 11 February 2 1 the Parchment 35


Property/Litigation

Raymond Lambe is a senior associate with OSM Partners. 0SM’s clients include Home For Life

Time to Resolve Unsustainable Mortgages The recent launch by the overnment of a new mortgage-to-rent scheme is an important development for homeowners in long-term and unsustainable mortgage arrears. Ten years after the crisis rst hit, a signi cant number of homeowners will have an opportunity to make a fresh, mortgage-free start in their existing homes. aymond ambe takes a closer look

After ve years, homeowners have the right to buy back the property at the open market value of the property at the time the option is exercised 36 the Parchment

T

he rate of uptake for the existing mortgageto-rent scheme (introduced in ) has always been low. This has generally been attributed to the multitude of stakeholders and the excessive bureaucracy involved. However, the rationale for mortgage-to-rent has always been sound – it allows homeowners in unsustainable mortgage situations to get certainty around their longterm housing. In order to improve the scheme, alternative nancing arrangements and purchasing models (involving long-term lease arrangements between local authorities and nancial institutions) were considered by overnment. A review of the scheme set out a series of actions and amendments that aimed to make the scheme uicker, more transparent and easier to access. The review also noted that alternative funding options were available (including the off-balance sheet potential of non-publicly funded entities). Home for ife (the only non-publicly funded participant in the new mortgage-to-rent scheme) has put forward an innovative arrangement that will see the mortgaged property transferring to Home or ife s ownership. Its scheme will operate as follows The property will be sold to Home for ife by participating lenders following a voluntary surrender of the property by the homeowner.

The sales proceeds go towards the mortgage debt. ubject to prior agreement with the lender, all remaining mortgage debt will be written off. pon the transfer to Home for ife, the property will be simultaneously leased to the local authority who in turn, grants the former homeowner a tenancy to remain in the property. On completion of the process Home for ife will be responsible for routine maintenance and upgrading. After ve years, homeowners have the right to buy back the property at the open market value of the property at the time the option is exercised. An income-based, affordable rent is payable to the local authority who will review the rent each year based on income. ligibility criteria for Home for ife s scheme have been set by overnment. In broad terms a homeowner must be unable to make repayments on their mortgage. They must have completed the mortgage arrears resolution process with their lender and they must fall within the income limits for the area in which they reside. Home for ife offers a solution to homeowners at the most acute risk of losing their properties and it should be front of mind for practitioners advising eligible homeowners across all lenders. P


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*This is the first in a series of interviews where we meet solicitors who have found new careers when the law didn’t fulfill their ambitions

Dreams from her Father Sarah Jane Murphy loved the law. She still does. And all she ever wanted when she was a child, was to be a lawyer when she grew up. And she was. Until the memory of her late father’s words pushed her into uncharted territory. Stuart Gilhooly meets the journalist to discuss her Damascene conversion

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arack Obama was fond of a woolly platitude. One of his favourites was to encourage all young people to “dream big dreams”. It’s not the worst advice ever proffered and applies to this country just as comfortably. It’s easy to imagine many young law students have done exactly that. For the vast majority, qualifying as a solicitor or barrister is the nal realisation of that dream.

Dreams The problem with dreams is that they often don t re ect reality. any of us grew up on a diet of Matlock, Rumpole and, for what passed as real-life miscarriage of justice romanticism in those days, Gareth Peirce. Large law rms with long hours, commercial focus and billable time tend not to set the pulses racing. Big Law Uncovered is unlikely to be the next MTV sensation. Sarah Jane Murphy was one of those kids. She caught the bug early and couldn’t shake it. Not that she wanted to. “I had work experience in 4th year at the our ourts when eargal oley legendary criminal barrister showed us around and I was just hooked from then. I loved the certainty of it, I suppose.” A Killiney native, she was a Holy Child girl and a high achiever. Her father was a 38 the Parchment

Many of us grew up on a diet of Matlock, Rumpole and, for what passed as real-life miscarriage of justice romanticism in those days, Gareth Peirce. Large law rms with long hours, commercial focus and billable time tend not to set the pulses racing. Big Law Uncovered is unlikely to be the next MTV sensation

pilot while her sister is a teacher and an accountant. Big things were expected of her and she didn’t let them down. UCD was the obvious destination after her friend’s father, the late Mr Justice Shanley, told her it was the only place for aspiring stars. Her father had been diagnosed with a rare neurological disease when she was nine so had been grounded from then and had steadily deteriorated. “He lost his ability to walk, to talk, use his muscles, anything he learned cognitively between six months and a year old.” Initially, the family were told his condition wouldn’t improve but wouldn’t be fatal. Then it was diagnosed as multiple system atrophy and the prognosis was a lot gloomier. “He died suddenly in the summer after I nished my eaving erti cate. I think he had been secretly delighted that I chose law but he wasn’t there to see the results and I think that is a little bit sad.”

Big Love He was . he understates the effect of his death at this point. She doesn’t say it but he was clearly her hero. He did leave her with probably the most valuable piece of advice she could have received at that young age and which has de ned her career since. “The only advice I got from my dad was that he never felt he had worked a day in his


Spring 2019 dsba.ie Stuart Gilhooly is a former President of the Law Society and DSBA. He is a partner at HJ Ward Solicitors Harold's Cross and a former editor of the Parchment

Life after Law

the Parchment 39


I ll never forget the rst day I walked into a newsroom. The noise. I loved it. They sent me straight away to a press conference in Dublin Castle. I noticed on day one that journalists looked after one another life because he loved ying. He knew there were very few careers like that but if you can get close to that, you are doing well. So, I always kept that in mind.” She began college in September 2000, two months after his death, made friends quickly and immersed herself in university life at el eld. “I loved studying law. I loved it as much as I loved school.” In when she nished, the boom was at its boomiest. The biggest rms were expanding their training programmes and she was offered two training contracts. After consultation with her uncle (her father s brother eil urphy, head of audit at PW ), she chose Dillon Eustace. “They were not as big as the ‘big 5’ and there was still a sense of community about it rather than real corporate. “I remember getting a letter saying my starting salary would be €24,500 and I remember turning around to mum and saying I’m going to need to get some advice about where to invest this money. I thought it was huge at the time.” When doing the interview, she had told them she didn’t want to do funds but they explained that as that was their bread and butter, it would be necessary but would only be part of the training. She began in June 2005 and then attended her PPC1 that autumn with 11 others from the rm. “PPC1 was where the alarms bells kind of started ringing. I was in a tutorial group with several people working for really small rms, one guy was from the Aran Islands. As regards procedural things like delivery of a summons they were streets ahead of us from the big rms. I had worked on one le all summer while they had seen things through from start to nish. “I felt at a complete disadvantage. I had always been someone in school who was top of the class and in college, I was in the top third and now I felt I didn’t know a lot about this.”

I Don’t Want to Know The transition from school and college to the real world of law and its practical application 40 the Parchment

can be challenging but for Sarah Jane, she had the added complication of buried grief bubbling underneath the surface. “I started getting really panicky and overwhelmed. I think the grief from my dad's death was catching up with me because I hadn’t really dealt with that. So I went to see the student welfare liaison. In fairness, she was brilliant and said keep in touch. That year my granny and my cousin had also died so I was reliving my dad’s death.” After passing PPC1, she returned to the office where the dreaded funds module awaited. She hated it. With a passion. When describing the experience, her pain is still visceral, 13 years later. “The bulk of the trainee s work was lling out huge forms to send to the nancial regulator. I’m not exaggerating when I say that you go in at 8.30am, leave at 7.30pm and apart from lunchtime, you would have no interaction with humans. There were no phone calls, no clients and literally, you, your head and the binders with the documentation. But I knew I had to give it a shot as part of my apprenticeship. “There’s a lot of money to be made in investment funds as a career and I think the attraction and stability of that outweighs the fact that one day they went to college dreaming of being an actual lawyer.” The anxiety she had experienced on PPC1 morphed into depression as the cumulative effects of incomplete grief, boredom and isolation at work combined. “I was miserable. My mental health de nitely suffered because I m someone who needs to be interested and involved. Because I decided it didn’t interest me, I also decided I was rubbish at it.” Having survived the module, the next step was a return to Blackhall Place for PPC2. Around this time, a further tragedy occurred. Her uncle Neil Murphy who had guided her after her father’s death died tragically in Portugal aged 50. If this seemed like the nal straw, things were looking up back at the office. The nal module was property which she loved.

In the back of my mind pon uali cation the country had entered the throes of the recession so the offer of employment in Dillon Eustace was limited. Either a job in the dreaded funds department or a year anywhere else. There was more chance of chopping her hands off than returning to funds so she chose commercial property. “I loved the commercial property department. It put my faith back in law. I had a really happy time there but all the time there was a voice in the back of my head which got very loud when I was unhappy in law and went away when I was happy. I knew I wasn t the right t for being a solicitor and there was a big creative part of me that wanted to get out but couldn’t.” She left Dillon Eustace after the year but speaks highly of the rm. he is at pains to point out that her disillusionment with funds is not their issue, but hers. As the recession reached lows that nearly broke the legal profession, work was very difficult to come by. A few maternity leave contracts were followed by one last throw of the dice. A job as a solicitor with the National Lottery would be her last one as a lawyer but while not all of her numbers came up, it was a very different world to the corporate environs of Dillon Eustace. “ y phone rang one day, in the rst or second week at 11.05am and the lady beside me said ‘don’t answer it’, it will set a precedent that you are happy to answer the phone during your break time.” After four years there, an Post sold the Lottery and with it, her job. By this point, although her faith had been restored to some extent, the creative noise in the back of her head had reached a crescendo and it was time to move on. Journalism and media had always been an interest so she set off down this path. efore we head down the road to Damascus, I ask whether circumstances played as a large role as anything else. She likes people, real law and solving problems. If she was in a smaller rm, would she still be a solicitor? She agrees that she may well be. “If I had a son or a daughter, I would urge them to do an apprenticeship in a small rm. I don t see the bene t of a big rm.” The lottery of life spun her in a different direction. In 2013 the economy was picking up but not back to pre-boom levels or even close to where we are now, so jobs in smaller rms were still in short supply. Anyway by now, she was ready to gamble on following her instincts. Being a solicitor wasn’t her dream job. It wasn’t the Utopian vision her father had tantalised in front of her. The job that wasn’t like a job.


Spring 2019 dsba.ie

Life after Law

Photography: Bryan Meade

Go your own way he met ark agney for coffee and he steered her in the direction of DCU and a masters in journalism. “After two weeks I thought, this is it. I have found my people. The older I got, the more I learned to trust my gut. I had to grow up very quickly with dad’s illness and losing a lot of people close to me. I had a gut instinct that if I don’t try this I will regret it for the rest of my life. I knew I could go back to law if I wanted.” She has an oversized personality. Bubbly, gregarious and opinionated, she looks you straight in the eye but knows when to listen. The media was made for her and the only surprise is that it took so long. “I was always told that I was outspoken, loud and had a big personality and I felt I was sti ed in the legal eld.” She began work for Independent News and Media as so many have before her. “I ll never forget the rst day I walked into a newsroom. The noise. I loved it. They sent me straight away to a press conference in Dublin Castle. I noticed on day one that journalists looked after one another. “A few weeks later I had my rst front page and seeing your name on the front and knowing the blood, sweat and tears that went into it, getting the quote, checking the quote, it was an indescribable thrill.” She was sent on the General Election campaign trail in 2016 and it was then she knew there was no going back. After being assigned to the District Court for court reporting, she knew she’d “married my two dream worlds.” She explains further. “ ournalism satis ed my innate curiosity in a way that law never could. It looks behind a person’s words and actions and shines a light on what’s really going on in their lives. Law in comparison, is formal and sterile. Court reporting proved a perfect t for me as I was combining my interest in the law and the pageantry of the courts with the added element of relaying a story to people who read my pieces.”

Never Going Back Again She is now a freelance court reporter working with most of the daily newspapers and employed with CCC Nuacht on a regular basis. She has covered all types of trials from manslaughter to rape to death by dangerous driving. Among them, the fraud trial of David Drumm, the Jobstown assault and the Belfast rape trial stand out as the most high pro le cases of the last ve years. But it is the personal aspect that brings real satisfaction.

Sarah Jane Murphy at a glance

FAVOURITE MOVIE: Three Billboards Outside Ebbing, Missouri FAVOURITE SINGER/BAND: Fleetwood Mac WHAT BOOK ARE YOU CURRENTLY READING: Becoming - Michelle Obama IF YOU COULD GO BACK IN TIME AND COULD CHANGE HISTORY, WHAT WOULD YOU CHANGE - TRUMP OR BREXIT? Brexit YOUR FAVOURITE IRISH POLITICIAN: Michael Collins IF YOU COULD CHANGE ONE THING IN THE COURT SYSTEM, WHAT WOULD IT BE? The endless delays in getting a trial on. Awful for victims and accused to have to wait so long

“One of the most rewarding aspects of my job was when complainants in sexual abuse and rape cases opted to waive their anonymity and speak out following a guilty verdict. I felt they really trusted me to tell their stories and it was always a privilege to speak to them.” Perhaps the bravest part of the decision to change career and most difficult aspect to understand is the disparity in income and lack of an obvious career path. “I earn about a uarter or a fth of what my friends who uali ed with me now earn.” She accepts there is no career progression in court reporting but hopes to branch into other aspects of the media if possible. Her 10,800 Twitter followers can testify to her everyday entertainment value. She is very sanguine about the change in income and status. “Happiness far outweighs status. How much time do you get to enjoy money?”

She speaks openly and candidly about her mental health issues and it’s clear that being ful lled in work is crucial. “I have had three bouts of depression/ anxiety in my life. The rst was in lackhall in 2005. I’ve had a lot of therapy since which has hugely helped me. A big element of it was loss – my dad, uncle, granny and cousin in a short space of time. And I was nothing short of miserable in funds for that year.” The difference today is stark. I meet a happy-go-lucky, effervescent font of bonhomie and enthusiasm. What is the secret? “I love going into work, I can’t wait to see what the day holds. It doesn’t feel like work.” Twenty years after her father guided her to follow her heart, she has come full circle. Riches are unlikely to follow but how many people can say they love going into work? Her dad is watching and smiling. P the Parchment 41


Lorna Osborne is an associate at Eugene F Collins Solicitors. She is a member of the DSBA Commercial Law Committee

Commercial Law

Establishment of the Corporate Enforcement Authority The eneral cheme of the ompanies ( orporate nforcement Authority) ill was published on th ecember . orna Osborne says that one of the most signi cant changes proposed by the bill is the establishment of the Office of the irector of orporate nforcement (O ) as an independent agency to be called the Corporate Enforcement Authority

42 the Parchment

Background

The Authority

ollowing concern as to the O s ability to properly carry out its functions and the criticism of the O s investigation into Anglo Irish ank and e n it patrick, the overnment published a package of measures aimed at enhancing and strengthening the framework in place to tackle white collar crime (Measures to Enhance Ireland’s orporate, Economic and Regulatory Framework, ovember ). One of the measures proposed by the overnment was the establishment of the ODCE as an independent company law compliance and enforcement agency with more control over its resources. The bill sets out the proposed legislation to give effect to the re-establishment of the O as an agency, rather than its current form as an office within the epartment of usiness, nterprise and Innovation. The new stand-alone agency will be called the Corporate Enforcement Authority (the “Authority”). The purpose of this change in structure is to strengthen the body responsible for the enforcement of company law in Ireland by increasing its independence and enhancing its powers. The establishment of the Authority is viewed as a key element of the overnment s suite of measures to tackle white collar crime in Ireland.

The bill provides that the Authority will be established as a commission, similar to that of the Competition and onsumer Protection ommission ( P ). The Authority will have up to three full-time members appointed by the minister. To facilitate the transfer of functions from the ODCE to the new Authority, the bill provides that the current Director of Corporate nforcement will be a member of the Authority. The bill gives the Authority the autonomy to appoint its own staff and where appropriate, members of an arda och na may be seconded to the Authority. The Authority will effectively take over many of the existing functions of the O (primarily investigation of offences under, and enforcement of, the ompanies Act ) and it will have largely the same powers as the O . However, the bill also strengthens the Authority s powers by: • introducing new search and entry powers to enhance the Authority s ability to gather evidence that is held electronically; and • permitting a court to consider admitting written statements (which might otherwise be excluded) into evidence in certain circumstances, effectively creating a statutory exception to the rule against hearsay. The overnment has set a deadline of for enacting the bill. P


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ON THE CLOCK? The Employment Act 2018 prohibits zero hours contracts

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LIFE AFTER LAW – JOURNALIST AND FORMER SOLICITOR SARAH JANE MURPHY NEW PRACTICE DIRECTION FOR ASYLUM, IMMIGRATION AND CITIZENSHIP LIST OF THE HIGH COURT


Beware of Time Limits in Employment Cases Employment law specialist Richard Grogan warns that issues are coming before the WRC and the Labour Court where there are delays in lodging claims

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he general provisions as set out in the Workplace Relations Act is that the period is six months from the date of occurrence of the relevant event. For “reasonable cause” it can be extended to 12 months. The established test for deciding if an extension should be granted for reasonable cause was set out in the Labour Court in case WTD 33 ementation Skanska -v- arroll. Here the test was set out in the following terms: “It is the court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute, it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstance as cited and the delay and the claimant should satisfy the court, as a matter of probability, that had those circumstances not been present he/

44 the Parchment

she would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown, the court must still consider if it is appropriate in the circumstance to exercise its discretion in favour of granting an extension of time. Here the court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.” The reason for setting this out is that there are some issues which are coming up now where colleagues have sought extensions. In a recent case it was argued that there was a lag generally in the work of legal practitioners in the particular case in July and August of each year. They argued there was challenges of workload in a small legal practice and the fact that the solicitor had to investigate the matter. A further argument was made that a data access request was made. There have been other cases where it has been argued by colleagues that due to the fact that they were busy, they were not in a position to deal with matters. The approach of the Labour Court in these cases has been very clear and precise. Where an individual comes to a solicitor, particularly


Spring 2019 dsba.ie Richard Grogan is principal of Richard Grogan & Associates Solicitors & Registered Tax Consultants. His firm won the Employment Law team of the Year Award 2018 at the Irish Law Awards

if they are out of time, being outside the six-month period to bring a claim, the Labour Court is of the view that the solicitor should deal with this as an urgent matter that would require immediate attention. Where a case is close to the time limit, then again, the Labour Court has taken the view that the solicitor must seek to put the claim in, on time. Similar type cases have arisen relating to the time to put in an appeal which is 42 days from the date of a decision. Of course, there are difficulties which offices have in dealing with cases. However, extensions of time are unusual in the WRC and the Labour Court. In dealing with cases, it would be my advice that if an individual is out of time to bring a claim or out of time to lodge an appeal when they come to you – that unless you are in a position to deal with the matter immediately, effectively within one or two days of them coming to you, then that is a type of case that it may be better to refer them to another office. If it is a case that the time limit to bring a claim or to appeal is very close again, unless you are in a position to deal with it within the relevant time limits, it is a matter which I would advise that a solicitor refuses to accept the engagement. Any solicitor is entitled to refuse any engagement. If a client comes to you, very close to the time limits or where the time limit has expired then you are taking

on a signi cant risk if you take that case on without having the time and resources to deal with it virtually immediately. There are exposures to solicitors. In a recent case for example, the Labour Court held that the delay between the six months to bring a claim and the date that they rst went to see the solicitor was reasonable because of the health issues which the employee, in that particular case was suffering from. However, the Labour Court did not accept the delay between that date and the date that the solicitor lodged the claim which was two months later. The Labour Court in that case refused to extend the time and the case failed. The times limits in employment law cases are very tight. There is no automatic right to an extension. Reasonable cause must be shown. The test on reasonable cause, which I have set out, is quite restrictive. Where a claim is lost because an extension of time is not given and that delay is allocated in whole or to a signi cant extent as to how a solicitor ran the case, then there are serious exposures for that solicitor. It is very hard for colleagues to refuse to take a case. However, it would be my advice that if you are pressed on time that unless you are sure you can deal with the matter urgently, it is better to refuse that assignment. It is better to lose a client than lose a case because you could not get the paperwork processed in time. P

Employment Law

Where a case is close to the time limit then again, the Labour Court has taken the view that the solicitor must seek to put the claim in, on time

the Parchment 45


Commercial Litigation

Ruari Rynn is a partner and Deirdre Murphy is an associate in the employment law team at William Fry

High Court Considers what an Interim Examiner may do before Appointment is Confirmed In the recent decision of . . . onstruction td I H 676 the examiner sought to have proposals for a scheme of arrangement con rmed by the High ourt pursuant to section of the ompanies Act (the “Act”). uairi ynn and eirdre urphy assess the case and say the most interesting feature of the case was that the scheme of arrangement was proposed for approval by the interim examiner before his appointment was con rmed by the High ourt Arrangement to be Approved the day after Application to Confirm Appointment

The court found that the concerns expressed by the unsecured creditors as to the conduct of the investment process carried out by the examiner did not evidence any failure by the examiner and did not amount to a deviation from the proper exercise of his commercial judgment in selecting an investor 46 the Parchment

r eil Hughes of aker Tilly Hughes lake was appointed interim examiner of M.D.Y. Construction Ltd (the “ ompany”) on eptember . The application to con rm his appointment was listed for hearing on October . Prior to that hearing the interim examiner delivered a report to the court, stating that he had engaged with potential investors and formulated proposals for a scheme of arrangement. This engagement included entering into an investment agreement and the issuance of notices convening meetings of members and creditors, pursuant to section ( ) of the Act, for the purposes of considering and voting on the proposals. Interestingly and somewhat uni uely the meetings of the members and creditors were scheduled for the day after the hearing of the application to con rm the appointment of the examiner – on October .

Power of Interim Examiner to Convene Meetings of Creditors and Members uinn . for the High ourt noted that it was certainly unusual if not unprecedented for an interim examiner to activate ection ( ) i.e. the power to convene meetings of members and creditors prior to the hearing of the petition. However, there was no dispute over his power to do so.

Creditors to Have an Opportunity to be Heard The court commented on the pace at which the interim examiner moved and stated that creditors and interested parties should, in the normal course, have the opportunity to be heard at the hearing to con rm the appointment of an interim examiner before an examiner would activate section ( ). However, Quinn J. emphasised that whilst the interim examiner was fully justi ed in proceeding as he did, the circumstances as discussed below did not mean that this should be taken as an endorsement of general practice.

“Compelling reasons” for Convening Meetings Prior to Confirmation Quinn J. was of the view that an application for an

extension of time for delivering the report re uired by section would be preferable to convening statutory meetings before the petition had been heard unless there were some compelling reasons otherwise. In this case, submissions were made on behalf of the company and a number of other parties including company clients, that time was of the essence regarding the examinership in circumstances where two important clients of the company were threatening to terminate their relationships with the company because of the uncertainty surrounding the examinership. If this business was lost the company s proposed survival as a going concern would be signi cantly diminished.

Investment Proposal is a Commercial Judgment In con rming the proposed scheme which had been objected to by certain creditors, uinn . noted that the decision as to which investment proposal to accept was a commercial judgment for the examiner. The court found that the concerns expressed by the unsecured creditors as to the conduct of the investment process carried out by the examiner, which were advanced principally by an unsecured creditor who was also a disappointed potential investor, did not evidence any failure by the examiner and did not amount to a deviation from the proper exercise of his commercial judgment in selecting an investor. The court noted that the examiner was able to demonstrate that the company had a reasonable prospect of survival as a going concern if the proposals were con rmed and accordingly con rmed the proposed scheme.

Key Point This recent decision is instructive in that while it is unusual for an interim examiner to enter into a binding investment agreement before the application con rming his her appointment is determined, it is clearly not beyond his her remit to do so and will be permitted where there are compelling reasons to do so as arose here. P


Spring 2019 dsba.ie Carol Lennon is privacy counsel for a telecommunications company, having previously acted as DPO in a representative body for credit unions providing advice on data protection and financial regulatory matters

Brexit

Transferring Personal Data to the UK? Whenever personal data is transferred outside of the EEA to a third country – soon to include the – certain prior safeguards must be in place. arol ennon says that it s time to review your arrangements with any -based entities where you might transfer personal data to them

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he P re uires that there s an appropriate safeguard in place prior to transferring personal data (“data”) to a third country. ata controllers only need to rely on one of the following safeguards.

Adequacy

The ommission has the power to determine whether a third country has ade uate privacy laws e.g. Canada. Due to their adequacy, it is permissible to transfer data to any country on the list. The has commenced application for adequacy, but it is uncertain whether or when such a nding would be made.

Privacy Shield If sending data to the US check if the US entity is registered under the privacy shield scheme. If bound to the scheme, you are deemed to offer ade uate protection.

Binding Corporate Rules These apply to companies who have international footprints, to allow intra-group data transfers under an approved set of rules.

Derogations There are seven derogations allowing for data transfers under Article 49 which apply to certain speci c circumstances, such as transfers made with the explicit consent of the data subject (not really feasible where there s a large amount of data subjects or where employee data is involved) or transfers necessary

for the establishment, exercise or defence of legal claims.

Standard Contractual Clauses (SCC) Also known as model clauses, SCCs are set terms issued by the European Commission and may be the most appropriate safeguard for a UK transfer. SCCs come in two formats: controller to controller; or controller to processor. Not all transfers are provided for, e.g. processor to sub-processor transfers and we await guidance on same from the Data Protection ommissioner ( P ). The can be stand alone or incorporated into your processing contract (however, they don t replace Article obligations). The terms shouldn t be amended except where speci c information needs to be inserted, largely in the appendices. However, the indemni cation clause in the controller to processor SCC, can be negotiated between the parties. SCCs can be found on https:// ec.europa.eu/commission/index_en . emember to update your privacy notice(s) in accordance with articles and to re ect transfers to third countries. P

The has commenced application for adequacy, but it is uncertain whether or when such a nding would be made

The above applies only if there is a ‘no deal’ Brexit. However, with no certainty and Brexit fast approaching it is the advice of the D that the necessary safeguards are put in place. The S s are currently under legal challenge as part of the ongoing Schrem’s case which may result in their being struck down or replaced in future. the Parchment 47


Kaiserdämmerung! Twilight of the Kaiser

Susan Martin looks at the trial of Kaiser Wilhelm II after World War I for war crimes. Spoiler alert, it doesn’t happen!

Only obeying orders Nearly everyone is familiar with the International Military Tribunal which took place after World War II. There have been a number of documentaries and lms about the event including Trial at Nuremberg starring a young William hatner. Indeed, the term “ uremberg efence” is now shorthand for the “I was obeying orders” excuse. ut it may interest readers to know that this was not the rst attempt at a modern international war crimes tribunal.

Home Before the Leaves Fall While Europe had seen its share of bloody wars, they tended to comprise a series of short-lived battles, taking at most, a day or two. It appeared that noone had learned from the US Civil War the scale of slaughter involved in industriali ed warfare. ot knowing the unprecedented level of suffering and brutality that would shortly be visited on Europe, the Kaiser famously told his soldiers, when war was declared in August , that they would be home “before the leaves fall”. World War I was the rst instance in history of total war and destroyed the uropean economy as well as decimating its nations. resh horrors from this War including prolonged trench warfare in dreadful conditions, poison gas, amethrowers, a blockade to prevent delivery of food supplies which starved civilians and all-out indiscriminate submarine warfare. oth sides were culpable of breaches of the law of war and war crimes, particularly with regard to the conduct of the war which had dragged on, ratcheting up the pressure on each side to come up with the technology which would make a breakthrough, regardless of the suffering caused.

A Treaty to End all Wars A cessation in hostilities (truce) was called on ovember and peace talks began at Paris in 48 the Parchment

anuary . The terms of the peace were dictated by the Allies and reduced to writing and became known subsequently as the Treaty of Versailles. Articles 227 to 230 of the Treaty attributed the blame for the War to Germany and provided for the establishment of an international tribunal with judges from the victorious nations which would try the war crimes of the defeated nations only. The Paris Peace onference established a Commission of Responsibilities to make recommendations regarding the criminal charges to be brought for violations of the rules of war. The Commission’s report made recommendations about holding an International ourt to try war crimes, but some Allied powers ( rance, , Italy) determined that the erman war-time leader, aiser Wilhelm II was to be put on trial by judges supplied by the victors. There was a certain public appetite to attribute blame to the defeated nations and their leaders for the war and the Prime inister, loyd eorge, was returned to power in the election during which he campaigned under the slogan “Hang the aiser”.

Victor’s Justice – a Carthaginian Peace The erman post-war government baulked at the terms of the Treaty, its attempt to burden Germany with all the blame for the war and in particular, at the idea that only individuals from defeated nations would face trial and that there would be an International Military Tribunal populated only with Allied judges. cheidemann, the rst leader of the new erman epublic resigned rather than sign the terms. However, the Allies indicated that war (which was suspended pending talks) would immediately recommence if terms were not agreed as drafted by them. ustav auer who succeeded cheidemann, having consulted with the erman generals, saw that there was no merit in refusing to sign as no resistance could be offered by ermany. The erman parliament


Spring 2019 dsba.ie Susan Martin is principal of Martin Solicitors. She is a council member of the DSBA

Legal History

Kaiser Wilhelm II inspecting German soldiers in the field during World War 1

reluctantly rati ed the Treaty and its representatives signed it just before the deadline for a resumption of hostilities set by the Allies expired. y the conclusion of the Treaty of ersailles, the President, Wilson, made his way back to the nited tates and did not participate in concluding the treaty with Turkey (known as the Treaty of vres). While this treaty was never fully rati ed, it did provide original material for the formation of an international court and for the trial of war crimes including crimes against humanity which contemplated as a war crime actions taken by a state against its own people. This was thought largely to be the work of the reek representative on the Commission of Responsibilities, ikolaos Politis. The aiser was not to be charged with invading elgium (which the post-war erman government admitted and offered to pay reparations for) but with destroying the peace or “provoking a war of aggression�.

Bringing the Kaiser to Trial With the defeat of the German army imminent and erlin in revolution, the aiser left his palace at ans ouci, Potsdam, on th ovember and travelled initially to pa in elgium and thereafter (possibly at the invitation of ueen Wilhelmina) to trecht in Holland. He stayed initially with the utch ount entick with a view to returning to ermany at a later date. A bi arre attempt was made by a former Tennessee enator, aptain uke ea and a handful of American soldiers to kidnap the aiser and bring him to justice. This group, while on leave in early , travelled to the Netherlands from France in uniform to carry out this unauthorised action. They reached Amerongen astle where Wilhelm II was a guest. They failed to persuade the owner to let them meet the Kaiser in person. The utch army were then ordered to surround the

castle with troops forcing the Americans to retreat (although one stole an ashtray on the way out ).

Demand for Extradition The Treaty of ersailles became law on st anuary and the ritish, rench and Italians sent a demand for surrender of the aiser by the utch Government. The idea was that the Kaiser would be tried before a court composed of judges chosen by the Allies in either ondon or Paris. The utch legal view was that (a) if the charge being brought against the aiser for war-mongering had been on the statute books before the war and (b) if the court was run by a eague of ations (not just the victors) then they would have no difficulty in handing the aiser over for trial or indeed they would be agreeable to having him tried in the etherlands. What they would not agree to was, some kind of retrospective charge being put by a politically appointed court after the event. When the extradition re uest was rejected, the Allies shifted their position favouring some kind of internment similar to what had been imposed on apoleon in but the utch were not interested. They indicated that any attempt to force extradition would infringe utch neutrality. y then the appetite of the Allies for an international war crimes tribunal and for a trial of the Kaiser had started to wane.

The Leipzig Trials The Allies in ebruary , prepared a list of those individuals they deemed should be tried for war crimes (all erman). However, the erman Government refused to hand these individuals over and offered instead to try the accused within the German justice system. Ultimately, a war crimes trial was held at eip ig in (Reichsgericht - the eip ig War rimes Trials). There was an absence of evidence in nearly cases a list of only accused

While this treaty was never fully rati ed, it did provide original material for the formation of an international court and for the trial of war crimes including crimes against humanity which contemplated as a war crime actions taken by a state against its own people

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Although the trials were seen as a failure at the time, the hearings at eip ig were the rst attempt by the international community to devise a system for the prosecution of violation of the law of war and crimes of aggression as well as crimes against humanity

persons was eventually furnished to the Germans by the Allies and individuals were tried. There were a number of ac uittals (on the basis of the parties following orders or the perception that the accused was doing his best under extraordinarily difficult conditions) and few served sentences.

Kaiserschuldig? Was the aiser guilty The charge the Allies intended to bring against the aiser was framed in an amateur fashion by the ritish without proper investigation. The crime allegedly committed was “an offence against international morality and the sanctity of treaties”, rather than a particular violation of say, the Treaty of ondon in respect of the invasion of elgium. It is unlikely that a charge as outlined above would have been easy to prove and it would have had to cover the origins of the war as well as the conduct of the aiser during the war. This would have necessitated proof that the Kaiser alone was responsible for the start of the war and would have re uired an examination of the behaviour of all the belligerents and this is something that ritain and rance had little appetite for by . Indeed, there also was some concern that the charges would not have succeeded in circumstances where the aiser could argue immunity for actions taken as head of state.

Outcome for the Kaiser The Kaiser did not seem too concerned about the trial in circumstances where he had taken up asylum in the Netherlands. Wilhelm II, with the approval of the utch government, purchased a castle at oorn near Utrecht where he remained for the rest of his life under a sort of sophisticated house arrest. He did not return to ermany or leave the etherlands again.

The legacy of the Leipzig Trials, The Treaty of Sèvres - International War Crimes Tribunals Post World War I Although the trials were seen as a failure at the time,

50 the Parchment

the hearings at eip ig were the rst attempt by the international community to devise a system for the prosecution of violation of the law of war and crimes of aggression as well as crimes against humanity. The work undertaken pursuant to the Paris Peace onference and in particular the draft Treaty of vres set a blueprint for a future international criminal court. The ritish and ussians considered in April as World War II was drawing to a close, the execution of senior a i leaders but came to the conclusion after consultation with President ranklin Roosevelt, that a War Crimes Tribunal would be established. Thus, the eip ig Trials formed the structural blueprint for the uremberg Trials. Indeed, the current International Criminal Court based at the Hague differs very little from that contemplated by the Treaty of vres. There is a political component to these trials given they are run and funded by the international community. They are often considered by the vanquished to be victor’s justice. lus a change, plus c’est la même chose as they say. When we consider the turns of history, it’s worth remembering that while the aiser was the rst head of state where the victors proposed a criminal trial based on his “aggression”, though he would not be the last. The aiser s ill begotten legacy is his role in escalating a war which was started in the alkans by the assassination of Archduke ran erdinand by a erb nationalist. Today in the Hague, located a little over an hour’s drive from where the Kaiser died are now located new institutions for trying war crimes. History has a neat symmetry when you consider that one of the most recent high-pro le prosecutions of a head of state by a tribunal was against lobodan ilosevic, another erb nationalist his crime - waging a genocidal war starting in the alkans. The creation of a new mechanism of international justice, which for the rst time in human history holds powerful people accountable for war crimes, is perhaps the most overlooked, but perhaps most tting aspect of the aiser s legacy. P


Spring 2019 dsba.ie

In Practice

NEW PIAB LAWS New laws came into force at the end of March 2019 that amend the powers of the Personal Injury Assessment Board. Under the new laws, claimants will be penalised for failing to attend PIAB medical appointments. There will also be penalties for those who refuse to provide the PIAB with details of their loss of earnings. The assessment board will have the power to award no damages to claimants who do not comply with the agency’s request for information. If the claimant subsequently brings their case to the courts, PIAB may apparently notify the trial judge that the person did not co-operate with the agency. There will also be reduced fees for making claims electronically rather than with paper documents. The new laws came into operation on 25th March 2019. Barra O’ ochlain, DSBA Litigation ommittee

DSBA SPECIMEN PARTNERSHIP DEED 2019 The DSBA intends to introduce its updated specimen Partnership Agreement at its forthcoming seminar on 11th April next. The scope of the Agreement which is designed as a specimen, is to highlight some but not necessarily all of the rights and duties of the partners applied by Partnership Law; to highlight provisions that are not implied by Partnership Law and to incorporate some of the provisions in the Legal Services Regulation Act 2015 in particular to limited liability and nally to update the said deed which was last updated in 2001. With the ongoing expected implementation of the Legal Services Act it seemed an opportune time for the DSBA to review this document and to endeavour to incorporate

into same anticipated changes in the law both from a regulatory framework point of view and forthcoming limited liability opportunities for partnerships as well as engaging in a general update in the deed to take account of developments in practice and regulation over the last 18 years since the last deed was published. The introduction of the new partnership deed will be made during our forthcoming Practice Management seminar on 11th of April next which will also seek to look at limited liability for partnerships and provide an update on partnership law. Niall awley, hair – DSBA ractice anagement ommittee

When a summons is renewed for the purpose of extending time to serve, the time period has been reduced from six months to three. No reason was given for the necessity for this. Several court clerks said they were not aware of it until they were kindly informed by the central office. The provision is contained in SI482/18. After that period one will have to apply to the master or High Court as appropriate, for a further extension. Barra O’ ochlain, DSBA Litigation ommittee

Save The Date

VISION FOR THE FUTURE The Courts Service is in the process of developing a long-term strategy which will include a vision for a modern, digitally enabled organisation that maximises the use of leading edge technologies in the delivery of its services and all aspects of its operations. This strategy will take account of best practice developments in comparable organisations internationally as well as instances of best practice in the Irish public sector.

BEWARE – EXTENDING TIME REDUCED

The Courts Service has appointed PA Consulting Limited to support it in the development of this strategy and they would like to meet key stakeholders as part of this process. A meeting of superior courts users is being arranged and Barra O’Cochlain will attend on behalf of the DSBA Litigation Committee.

DSBA Midsummer Ball and Law Book Awards WHEN: Friday 21st June 2019 WHERE: Conrad Hotel Full details of the event will be available soon at www.dsba.ie. Enquiries: maura@dsba.ie

DSBA Litigation ommittee the Parchment 51


A Tale of Two Dismissals Ailbhe Dennehy warns of a cautionary tale for employers following a recent High Court decision which highlights the important steps to be taken by an employer before triggering a dismissal process. It also con rms that termination of employment on notice is not as simple as it may sound

A

recent application before the High Court to prevent the dismissal of a senior employee, red for allegedly making an offensive comment to a female co-worker, captured the media’s attention. In the case of Grenet v Electronic Arts Ireland Limited ( A) a number of signi cant employment law issues for global employers were explored. In particular, the circumstances in which an employee can be terminated, with or without fault, and who within the business has the requisite authority to lawfully effect a dismissal.

So What Happened? ean-Philippe renet, a senior director within A, was dismissed in November 2018 after allegedly making an inappropriate comment to a female colleague during a one-on-one video conference. The precise speci cs of the remark were in dispute, but r renet conceded that the comment was clumsy, inelegant and ill-advised . Suspended shortly after this comment, r renet was dismissed on grounds of gross misconduct in the absence of any investigation or disciplinary process (the First Dismissal). r renet secured an ex-parte injunction on ecember preventing A from taking further steps to implement his dismissal. The injunction prevented A from appointing anyone else to his role, pending the substantive hearing of his claim. A subse uently sent r renet a letter signed by r ohn Pompei, Head of Player xperience Operations within As parent company. This letter represented a second attempt to dismiss r renet and recast the basis for his dismissal. On the one hand, this withdrew the original fault-based dismissal. On the other hand it terminated Mr renet on a “no-fault” basis in accordance with [your] contractual entitlements (the Second Dismissal). 52 the Parchment

What’s the Legal Position? mployers in Ireland are permitted to terminate an employee’s employment on notice. Such dismissals will, however, be unfair under the nfair ismissals Acts. The existence of performance or conduct issues may, depending on the facts, undermine an employer’s ability to simply serve such notice and effect a “no fault dismissal. In such circumstances, the employee may seek to in unct or prevent the dismissal on the basis that he or she was not afforded fair procedures in respect of the particular performance or conduct issue. This implies that their employer effectively shortcircuited the applicable process and opted for the seemingly more straightforward option of a no-fault dismissal. In a 2014 case, Bradshaw v Murphy, the High Court refused to grant an injunction to restrain a no-fault dismissal of a chef restaurateur - despite the existence of allegations of gross misconduct that had not been investigated. Here, ustice inlay eoghegan concluded that the employee had failed to satisfy the rigorous test re uired to secure such an injunction. In other words he had not established that: • there was a serious issue for trial • damages would be an inadequate remedy • the balance of convenience lay in favour of granting the injunction Notwithstanding the Bradshaw decision, it is our view that it is on the basis of the unusual facts of that case that the recent Grenet case pivots in favour of the employee seeking to injunct the purported “no fault” dismissal.

What Arguments were Made? A argued that it could lawfully “abandon the earlier process and opt for the no-fault dismissal , provided: r renet s employment was terminated in accordance with his contract As reason for his dismissal was not linked to any alleged misconduct


Spring 2019 dsba.ie Ailbhe Dennehy is a senior associate in the Employment team at A&L Goodbody. She is a member of the DSBA Employment Law Committee

In short, provided r renet s contractual notice period was complied with, there was no entitlement to fair procedures or prior consultation where misconduct was not the reason expressly relied upon to justify the dismissal. r renet s position focused on a clause within his contract of employment entitling r renet to a grievance and disciplinary procedure. It was argued that the Second Dismissal was a “sham…cloaked in a new and relatively see through clothes .

What did the High Court Decide? The ourt was persuaded by r renet s “see through clothes argument and held that employees can challenge a no-fault termination which is “dressed up to avoid unlawful conduct such as a breach of contract or a breach of a constitutional right to vindicate one’s own name . The ourt concluded that the econd Dismissal was, on the balance of probabilities, a cynical contrivance equating to a “deliberate decision to gloss over the serious impact on r renet s reputation. r renet secured a second injunction preventing A from dismissing him (or appointing any replacement) and re uiring A to continue to pay his salary and bene ts pending the substantive hearing of the matter. Another focal point in this decision was the authority of r Pompei, the signatory of the econd ismissal letter, to actually effect r renet s dismissal. r Pompei, an employee of As parent company, was not an employee or officer of the Irish A entity. In addition, no evidence was submitted that he had been authorised by the board of A to effect the termination of r renet s employment. A argued that r Pompei, to whom r renet reported, had ostensible delegated authority to manage the majority of the employees at As Irish site including the power to terminate their employment . The Court was highly critical of this position, stating that

r Pompei “somewhat arrogantly…takes upon himself the authority to act on behalf of the defendant without recognising that an ultimate parent corporation and a subsidiary company are separate legal entities. The ourt noted that A is an Irish entity subject to Irish law and that the global nature of the group’s business and management structure did not trump those obligations. Although the Court did not make a binding determination on the point, Justice O’Connor was satis ed that r renet had not agreed that his employment contract could be terminated by anyone other than the Irish A entity.

Conclusion There is well-established case-law that con rms employers are entitled to dismiss employees (with notice) on a “no-fault” basis. However, the speci c facts of the renet case are a useful reminder to employers of the court’s ability to look behind the “see-through clothes” of a “dressed-up” no-fault dismissal. In this instance the employer s efforts to “change tack and seek to effect r renet s dismissal on a nofault basis were totally undermined by its prior gross misconduct dismissal. In connecting the dots between the two dismissals and highlighting the potential irreparable damage to r renet s reputation, r renet successfully demonstrated • a strong case to be tried • that damages would be an inadequate remedy • that the balance of convenience favoured granting the injunction On a practical note, the decision also serves as a warning for global businesses with Irish subsidiaries and the need to ensure that Is are dotted and the Ts crossed when it comes to effecting “no fault” dismissals if they are to survive High Court scrutiny in an injunction scenario. P

Employment Law

In this instance the employer’s efforts to “change tack” and seek to effect r renet s dismissal on a no-fault basis were totally undermined by its prior gross misconduct dismissal

the Parchment 53


News

DSBA Seminar CPD Programme 2019 The DSBA has a busy CPD schedule for the coming months. All seminars will take place at Radisson Blu Hotel, Golden Lane, Dublin 2 from 2pm to 5pm unless otherwise stated. Pre-booking is advised and the forms will be posted to members or can be downloaded from the website. ommercial itigation pdate – chaired by His Honour Mr Justice Robert Haugh; iscovery Property amage laims and Damages mployment aw pdate to be held in A oodbody – Internal Investigations, no fault dismissals and the Employment ( iscellaneous Provisions) Act 28/03/2019

Property Seminar itigation eminar – ommercial ease itigation – Pitfalls and Traps haired by udge ohn O Hagan (retired) ounger embers eminar to be held in Arthur ox Practice anagement eminar – Partnership and Limited Liability

25/04/2019

Property Seminar amily aw eminar – ivorce eform – haired by s osepha adigan T , Minister for Heritage, Culture and the Gaeltacht itigation eminar – Probate itigation – on- ontentious Probate

Applications, Trusts and Costs Chaired by Mr Justice Donald Binchy Practice anagement eminar – pdate on Regulation ommercial ommittee – pdate on Commercial Law itigation eminar – pdate on Protection Law

ata

06/06/2019 Mental Health and Capacity Committee Seminar 11/06/2019

Property Seminar Practice anagement eminar – pdate on Practice Management itigation eminar – Personal Injuries Update itigation ommittee – ew ircuit ourt Family Law Rules riminal ommittee –White ollar rime

Susan

artin, DSBA ouncil

54 the Parchment

Laura Takes Over at the Helm Laura Glennon, solicitor is welcomed by Michael Brennan, solicitor and notary public as new principal solicitor of Maguire & Brennan, Solicitors & Notaries Public, Ballinrobe and Claremorris, County ayo. The rm recently celebrated over a century in business having been established in 1916.

Letter to the editor

Sir, I read tuart ilhooly s losing Argument opinion piece in the winter edition of the archment with interest. It was an interesting piece illuminated by uotes from lm classic The Usual Suspects. However I was bemused by ilhooly s assertion that “The insurance industry has been very clever. They have faded into the background and sent out the likes of I and the Alliance for Insurance eform to bat for them.” To respond to this daft assertion, I will use a slightly older uote, “There is none so blind as those who will not see”, attributed to nglish writer John Heywood in 1546. The Alliance for Insurance eform brings together civic and business organisations from across Ireland, representing over , members, , employees and , volunteers, highlighting the negative impact of persistently high premiums and calling for real action to tackle the issue. A casual review of our website and the “ Asks” we are seeking will con rm that four of those Asks relate to the issue of transparency with regard to the calculation of premiums and the settlement of claims. In other words, transparency from the insurance industry. There is nothing more depressing for the charities, community groups, arts organisations, sports clubs or small businesses facing a real and immediate existential threat from insurance costs than to hear representatives of the legal profession or the insurance industry deny any culpability in this crisis and point the nger at the other side, using half facts and alternative facts to bolster their case. These are playground tactics that may go down well with some colleagues and can temporarily muddy the waters, but re ect poorly on a profession that is supposed to supply many of the pillars of our society but is increasingly perceived by our members to be undermining that very society through its trenchant defence of economic self-interest in the face of the very obvious damage being done to many of the sectors we represent. This is a layered crisis, not a binary one and the Alliance will challenge whosoever it sees as having a contribution to make to solving it. Quantum needs to be addressed. Fraudulent and exaggerated claims need to be addressed. Insurance industry transparency need to be addressed. We expect more from the legal profession. Yours, eter Boland, Alliance for Insurance Reform


Spring 2019 dsba.ie

News

Legal Partnership The Institute of egal esearch and tandards (I ), the only Irish legal accreditation body, is delighted to announce its partnership with CalQRisk, an award winning provider of governance, risk and compliance software. I has partnered with CalQRisk to facilitate the delivery of the standards implementation and audit processes. The Q standards drive process excellence in legal practice and using the CalQRisk solution to audit,

helps keep the effort visible through the interactive dashboards and associated reports. The solution also facilitates ongoing monitoring of the key controls that have to be in place to maintain the standards. Through regular reviews and system updates, the I helps our clients keep up to date with regulation, legislation and best practice standards while driving excellence in risk, uality and practice management.

Pictured at the announcement is Julie Brennan, Managing Director of the Institute of Legal Research and Standards and Gerard Joyce, co-founder and CTO of CalQRisk

Adrian Mulryan Joins LK Shields as Head of Financial Services LK Shields has appointed Adrian ulryan as Head of inancial ervices. Adrian brings over years experience of the nancial services sector where he has worked in a variety of roles inhouse and in private practice in both Ireland and ondon. Adrian began his career with LK Shields and since that time he has held senior roles at both Allen Overy and Arthur Cox in London and Dublin.

Lawyers Against Homelessness Lawyers Against Homelessness is an association formed to assist rother evin of the apuchin ay entre in his efforts to help the homeless. It is a collaborative effort between members of the bar and the solicitors’ profession. ince ovember it has held four P conferences (three per year), all hosted by rother evin in the apuchin ay entre. In excess of , had been raised by the end of with of the proceeds going to the Capuchin Day Centre. rother evin has now introduced a new young family area in the Capuchin Day Centre which caters especially for families. This is extremely important as recent statistics indicate that more than one in

three people in emergency accommodation is a child. The CPD seminars are open to all members of the legal profession, four CPD points are awarded and the attendance fee is per person and donations are always welcome. There is also provision in place for rm sponsorship. The object of the seminars is to bring practitioners up to speed on legal updates across a variety of practice areas with several speakers addressing the conferences including members of the judiciary, the Law Library and the solicitors’ profession. The most recent event held on st arch included s ustice Irvine and other distinguished colleagues. Previous

contributors included the Attorney General eamus Woulfe s. ustice aker r. Justice Ryan, Mr. Justice Gilligan, Michael McDowell S.C., Mícheál P. O’Higgins S.C. and Michael Quinlan, President of the Law ociety ( ). The next CPD seminar will be on 21st une from . - pm in the apuchin ay entre. ees are and for colleagues less than ve years uali ed. our hours practice management is offered. A diverse range of practice topics will be dealt with. A new member to the committee is past president of the Law Society and former A President evin O Higgins, solicitor - lackrock. the Parchment 55


News

Successful Lawyers Event at the Movies The Irish Women awyers Association (IW A) were delighted with the turnout at their event to celebrate International Women s ay . The sold-out event was held on 25th February 2019 in the Stella Theatre, Rathmines. Eager attendees were already there at . pm enjoying a drink at the bar and meeting their friends and colleagues. At 6.30pm the guests were addressed by Aisling ulligan (IW A committee member and organiser of this event), s ustice atherine c uiness (IW A President) and aeve elargy (IW A hair). And by pm they were sitting in their plush seats with a bucket of popcorn and a glass of wine ready to be inspired by the recently released movie On the Basis of Sex about the early career of Ms Justice Ruth Bader Ginsburg or RBG as she’s known to her fans worldwide. Justice McGuiness spoke about a meeting held in I a number of years ago which she presided over with . arely visible to the guests at the back of the packed room she was nevertheless able to make everyone laugh as she recounted the s introduction on that occasion “Here are two women who stand head and shoulders above the rest”.

The IW A would like to thank everyone who attended and supported this event, in particular, Court of Appeal Judges Ms Justice Marie Baker and Ms Justice Caroline Costello, High Court Judges Ms Justice Úna Ní Raifeartaigh, Ms Justice Teresa Pilkington, Mr Justice Seamus Noonan, aria rowne ( hief tate olicitor) yra

ullinane ( tate oroner), laire oftus ( PP), ircuit ourt udge Pauline odd and istrict ourt judges udge Anne Watkins and udge Patricia c amara, r atherine appone ( hildren s inister), Patrick organ (President of the aw ociety), and en urphy ( irector- eneral of the aw ociety).

E-filing of Applications for leave to appeal to the Supreme Court From 15th February 2019 petitioners are able to le an application for leave to appeal to the upreme ourt online via O , www.csol.ie. Other areas currently on CSOL include a bankruptcy register, small claims and a pilot e-licensing scheme. This will allow solicitors to lodge applications for leave to appeal in the upreme ourt electronically in cases where all parties are legally represented. The key bene ts for practitioners are: . They can apply for leave to appeal online. . They can upload relevant application documents. 3. They can make an online payment of fees. 4. They can lodge respondents notice online. 5. They can upload a booklet of additional documents online. 56 the Parchment

6. They can track their online application. It is envisaged that this system be a mirror of the manual system currently in place. The ourts ervice would prefer if each side is legally represented and each side can agree to proceed with the online process. It is however possible for one side to operate online and the other not. There is a registration video on the courts website under notices, dated the 19.2.2019 labelled “e- ling and registration process for solicitors for leave to appeal in the upreme ourt”. A copy of the registration video page is attached hereto. Once the application is accepted, an email will be forwarded stating that the application is accepted and that the practitioner may proceed to payment. The Supreme Court

issue a notice of completion of payment and subse uently it will forward respondent s con rmation to the respondent. It is up to each practitioner to satisfy themselves that the application has been received within the relevant -day period and has been registered. o priority will be given to applications online in terms of a timeline. It is envisaged that lay litigants will be able to use the system in due course. A lot of work has gone into this by the ourts ervice and it is to be congratulated. Obviously the intention is to be able to extend the system to other courts. everal rms have already registered. Barra O’ ochlain, DSBA Litigation ommittee


Spring 2019 dsba.ie

News

Shamrock Rovers Delight For those who follow any sport or any team the words of Supreme Court Judge Donal O’ onnell in O onnell v Turf lub ring true traditions are important in general because they preserve what is valued beyond any single generation, and can be of particular importance in the field of sport. ames may be intrinsically trivial activities - the placing of a ball by action of foot or head across the line between two posts and under a third - but they capture the imagination. DSBA council members Diego Gallagher and myself are not sure but presume Judge O onnell had hamrock overs in mind when he penned his beautifully written 2015 judgment What is more certain is that members of the legal profession are no less immune from falling in love with a sport, or club than any other supporter they might share that sport with. As long-standing supporters of hamrock overs ootball lub iego and myself know the joy and agony of riday night football at Tallaght Stadium, the home of hamrock overs. overs has a long and proud tradition and is regarded by its impartial supporters as Ireland s number one football club A keen legal mind or fan of another eague of Ireland club may suggest that our lack of a league title since 2011 makes a mockery of our claim or those who do not have the joy of following Irish football, most eague of Ireland matches are played on a riday evening and the domestic football season runs from February to ovember. The eague of Ireland is a great standard (again this is an impartial fan s opinion) and the league has produced a number of Irish internationals in the recent past, from Graham Burke, Seamus Coleman, hane ong, ames c lean, avid eyler and Sean Maguire to name a few.

With our love of football in mind we approached hamrock overs late last year and suggested that overs invite the new Irish in the local direct provision centre to all of their home matches for the 2019 season. Mark Lynch and Siobhan Keane from hamrock overs were delighted to support this proposal and overs offered to provide free season tickets for all the residents of the Towers irect Provision Centre in Clondalkin if we could sponsor the coach travel to and from the match and food and drinks for the residents during the match. A number of solicitors, barristers and O’Herlihy Access Consultancy came on board and donated the funds re uired to bring a season of Irish football to our new Irish . ootball is for everyone Thankfully our new supporters have seen overs go to the top of the league after six matches and

hopefully they will see overs win the league for the rst time since . Of course, we are aware there are DSBA members who support other Irish football teams so these views are personal and not to be seen as an endorsement from the DSBA or its President reg yan The supporters we must thank are; O ullivan enny olicitors McMahon Goldrick Solicitors KOD Lyons Solicitors Gallagher Shatter Solicitors Albert Llussa Solicitor St John Solicitors John Glynn Solicitor James Dwyer SC Niall Buckley BL Cormac McNamara BL O’Herlihy Access Consultancy atthew enny, DSBA ouncil

IronLaw – The North South Triathlon Challenge ou may have heard some talk of a hard border in the last few months. I thought I d heard more than enough of it when Brian c ullin phoned me several months ago with the germ of an idea to pit the solicitors of Ireland on both sides of the border against each other in an Ironman triathlon. After giving my tentative support I thought I d never hear of it again but, no, rian is a determined man who doesn’t take no for an answer. And so, it has come to fruition. Thanks to sponsorship from Thread/Legal/Expd8, O eary Insurances and Willis Towers

Watson, this show is about to hit the road. And the sea. Taking place on 17th May with an early start, it will commence in ough elvin, o eitrim and nish at lackhall Place. Ivan eran from the South and the North’s Peter Jack will swim 3.86km before handing the baton to me and Darren Toombs of the North for a 180km cycle after which the Tombstone is likely to be mine The race will nish with a marathon from Maynooth to Blackhall Place where Brian McMullin will attempt to make up my de cit against the orth s Adam Wood.

The event will encompass three provinces, six counties and at least six border crossings so hopefully Brexit can be delayed a little longer We are raising money for this event and all proceeds will go the Solicitors’ enevolent Association. There for the grace of od, go us all. Please give generously if you can. onations may be provided to me at stuart.gilhooly hjward.ie, rian at bmcmullin brianjmcmullin.com or Ivan at ivanferan feran.ie. Stuart ilhooly the Parchment 57


DSBA Property Committee Seminar

The DSBA Property Committee held a CPD seminar on 29th January 2019. The seminar was entitled “General Conditions of Sale and Requisitions on Title – 2019 Editions.” The speakers were Patrick Sweetman, Matheson; Michael Walsh, Byrne Wallace and Catherine O’Flaherty.

Photography: Michael Finn

Left to right: Speakers Catherine O’Flaherty; Paddy Sweetman; Michael Walsh and Ronan McLoughlin

Left: Andrea McGurn, DWF; Evanna Killeen, Killeen Solicitors Far left: Colm Murphy, Colm Murphy & Co; Elaine Gorman, Colm Murphy & Co; Mary Cowhey, Mary Cowhey Solicitors

Right: Grainne Cunningham, JR Sweeney & Co; Marguerite Leech, Eversheds Sutherland Far right: Sheena Lally, General Solicitors Office; Garret Lally, O’Hanrahan Lally Dalton Solicitors; Niamh Moloney, General Solicitors Office Left: Sarah Flynn, Corrigan & Corrigan; David Murphy, Corrigan & Corrigan Far left: Mairead Leyne, Mairead Leyne Solicitors; Sara McDonnell, Richard H McDonnell Solicitors

58 the Parchment


Spring 2019 dsba.ie

Dublin Southside Solicitors Annual Gathering

Left to right: Elaine Given, Paul Egan, Ken Murphy

The solicitors of Dun Laoghaire and surrounding environs gathered for the 34th annual black tie dinner on 1st February 2019. The venue was the Royal St George Yacht Club and a great night was had by all.

Left: Maria Dorgan, Minister Josepha Madigan, Yvonne Chapman Far left: Kevin O’Higgins, Maria Dorgan and Law Society President Patrick Dorgan

Right: Mary Swords, Ann Keating, Geraldine Kelly Far right: Raphael Matthews, Justin McKenna, Deirdre McDermott

Left: Graham Fettig, DSBA President Greg Ryan, Shay Fleming

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DSBA Probate & Tax Committee Seminar

The DSBA Probate and Tax Committee held a CPD seminar on 21st February 2019. The seminar dealt with a range of probate issues. Speakers included Anne Stephenson, Stephenson Solicitors; John Glennon, High Court Probate Office and Rita Considine, Dublin County Registrar. The seminar was chaired by Bonnie Hickey, BL.

Photography: Michael Finn

Left: John Glennon; Bonnie Hickey, BL; Anne Stephenson; Rita Considine

Left: Brian Crowe, Brian Crowe & Co; Shauna O’Gorman, O’Gorman Solicitors Far left: Eithne Harte, John C Kieran & Sons; Nicola Kelly, John C Kieran & Sons; Robert Kieran, John C Kieran & Sons

Right: Ken Morris, Daly Lynch Crowe & Morris Solicitors; Darach Connolly, Darach Connolly Solicitors Far right: Kay Cogan, Cogan Daly; Rita Garvey, AC Forde & Co; Mairead Leyne, Mairead Leyne Solicitors

Left: Stephanie Trant, Gerrard L McGowan; Richard McGuinness, Richard McGuinness & Co Far left: Michelle Collier, John Gaynor & Co; Trea McGuinness; Porter Morris Solicitors

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Spring 2019 dsba.ie Photography: Michael Finn

Left to right: Greg Ryan, President DSBA; Geraldine Kelly; Eamonn Carney

DSBA Southside Social

The DSBA hosted a social evening on 1st March 2019 for southside colleagues. The gathering took place at Peggy Kelly’s, Harold’s Cross where colleagues dropped in on their way home from the office for a social drink.The DSBA wishes to thank Peggy Kelly’s bar for hosting the event and to colleagues for joining us.

Left: Joan Doran; Barra O’Cochlain; Denis Ryan Far left: Brian Crowe; Michael Hayes

Right: Veronica Gates, BL; Susan Martin; Michael Mulcahy, SC Far right: Paul Ryan; Greg Ryan, President DSBA

Left: James Seymour, County Registrar; Keith Walsh Far left: Martin Ryan; Michael Hayes; Sean McDonnell

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DSBA Probate and Tax Seminar

The DSBA Probate & Tax Committee held a CPD seminar on 7th March 2019. The seminar was entitled “Capacity Issues in Practice – Practical Guidance for Solicitors.” The seminar was chaired by Her Honour, Judge Susan Ryan. Speakers included Marl Felton, Felton McKnight; Keith Walsh, Keith Walsh Solicitors; Anne Stephenson, Stephenson Solicitors; John Neville, John Neville and Company; Aileen Curry, Office of the General Solicitor for Minors and Wards of Court and Rita Considine, Dublin County Registrar.

Photography: Michael Finn

Left to right: Speakers Anne Stephenson, Aileen Curry, Mark Felton, John Neville, Rita Considine. Seated Judge Susan Ryan, Keith Walsh

Left: Anne Harte, Colm O’Cochlain; Eimear Finan, Gartlan Furey Far left: Darach Connolly, Darach Connolly Solicitors; Michael Sheil, Michael Sheil & Partners; Tony Sheil, Sheil Solicitors

Right: Eva O’Brien, Reidy Stafford; Mary Kilcullen, Kilcullen & Associates Far right: Jessica Hickey, Hibernian Law; Susan Harrison, Martin Solicitors; Thea McGuinness; Porter Morris

Left: Tom Rowley, Doyle Associates; Dara Fitzsimons, Steen O’Reilly; Fintan Lawlor, Lawlor Partners Far left: Patricia Hickey, General Solicitors Office; Sharon McElligott, Murphy McElligott

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Spring 2019 dsba.ie Photography: Michael Finn

Left to right: Greg Ryan, President DSBA; Liam Collins and David Martin

DSBA Northside Social

The DSBA hosted a social evening on 7th March 2019 for northside colleagues. The gathering took place at Oscar’s Café Bar where colleagues dropped in on their way home from the office for a social drink. An enjoyable evening was had by all.

Left: Conor Cleary; Diego Gallagher Far left: Jean O’Mahony; Orla Coyne

Right: Niall Corr; Susan Martin Far right: Sarah Bruen; David Stafford

Left: Susan Harrison; Greg Ryan, President DSBA; Karl Dowling Far left: Wendy Lyon; Cathal Malone; Greg Ryan, President DSBA

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Closing Argument Stuart Gilhooly

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

Money Talks H

ealth warning: this column may contain traces of Brexit. Anyone remember when Brexit was a novelty? Not in a fun kind of way but in a ‘wow this is kind of interesting’ sort of manner. No, we can’t either. Nearly three years of doom and gloom would break the most optimistic of punters. If experts are to be believed, and this column is a big fan of experts, Brexit of any kind will result in disaster, the scale of which will only be determined by its texture. But if you scratch beneath the surface and are prepared to see a glass half full for just a split second before it falls off the wall of pessimism, the legal community may have cause for a sunnier disposition. As the last remaining wholly nglishspeaking country in the EU, international advantages are obvious. England and ondon in particular, has been the go-to place for generations for global litigation and more recently for alternative dispute resolution. Its role as an international business hub within the EU that naturally speaks and litigates in the same language as the much of the rst world business communities made it an obvious choice. Although it still retains many of the world s largest solicitors rms, the loss of its EU status is bound to have an effect. There is a reason why many English solicitors have sought to establish themselves on the roll here and it’s not because they like the Guinness. The legal profession here has mounted a campaign to steer the wandering eyes of 64 the Parchment

the global business world in our direction. Suggestions that jurisdiction clauses should shift across the Irish sea have been made loudly and, on the face of it, make complete sense. We have a young, diverse and highly educated legal profession which, in larger rms anyway, has moved away from standard personal injuries, probate and conveyancing bread and butter to major commercial transactions and litigation. We have the brains, the desire and the sophistication to pick up the slack. So, what’s the problem? Poor infrastructure, lack of investment in the courts and technology that would embarrass any lawyer trying to sell Ireland as the future of EU litigation. It cannot be said often enough that Ireland has the lowest number of judges per capita in the O . This is a truly shocking statistic yet is often buried beneath another article criticising our creaking court infrastructure. How on earth are our judiciary supposed to produce a Champions League winning team when they can barely put 11 players on the pitch every week? It is quite simply impossible to keep asking the same people to hear life de ning cases, produce long learned judgments and do it more and more and more? It’s not fair and that’s just now. Before the possible Brexit explosion. A review is being carried out by a group chaired by Mr Justice Peter Kelly into the civil courts which will soon report and will produce a plethora of innovation. Most of this will require investment. To say that we are technologically

The inister for ustice is painfully aware of these issues. None of this will come as any surprise to him. ut he can t x this leaking roof without a larger budget

de cient in the court system is the e uivalent of saying onald Trump is uite fond of himself. True but it doesn t uite get to the enormity of the problem. We are light years behind similar jurisdictions. We still can’t track the progress of an average High Court civil case online, apart from basic details. The ircuit ourt remains almost completely o ine. There has been much talk of a dedicated intellectual property court. This is in the category of no-brainer. xcept. Where would you put it There aren t nearly enough courtrooms to cope with the current infrastructure. And who would be the dedicated judge? Where would he/she be taken from? This column only ts on one page so the litany of problems has to necessarily end here. None of this should be taken as a criticism of the courts service which has been producing miracles with resources which make the loaves and the shes look like a children’s party illusion. The inister for ustice is painfully aware of these issues. None of this will come as any surprise to him. But he can’t x this leaking roof without a larger budget. There needs to be a change in mindset. Justice matters. Law matters. Leaving aside the obvious economic advantages of attracting big business to these shores with a justice system that is t for that purpose. Until this happens, we will be like a League of Ireland team bidding to host the hampions eague nal. rilliant people, huge enthusiasm but no capacity. P


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