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D UB LIN SOLICITORS B AR ASSOCIATION MAGAZ INE | SPRIN G 2020 | ISSU E 83

COVID-19 AND OUR NEW LAWS Health Act 2020 Examined

SIMON McGARR INTERVIEWED IMPLICATIONS OF PORTFOLIO SALES FOR LITIGATION


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Spring 2020 dsba.ie

From the Editor

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elcome to the spring edition of the Parchment which arrives to your door at a time of great uncertainty. The Covid-19 pandemic has changed the way we do business; changed the way we interact with our clients and changed the way we work alongside our colleagues. Practitioners are deeply worried and concerned about the future as it is hard to know what restrictions will be in place next week, let alone next month and beyond. I have just watched a CPD online with Flor McCarthy and Martin Lawlor who gave excellent advice to colleagues during this difficult time. It highlighted how we can all help each other and best deal with some of the problems posed by Covid-19 in our practices. The legal community is known for its resourcefulness and we will overcome this together and be all the stronger for it. In his article on pages 14-17, Matthew Kenny assesses the new Government legislation just introduced by the Oireachtas to tackle the curse of Covid-19. The Health (Preservation and Protection

and other Emergency Measures in the Public Interest) Act 2020 provides citizens with assistance and provides the State with much armour at this difficult time. Aside from Covid-19, we have a magazine full of articles on a wide range of issues for your interest and update. We also have a ‘bumper’ photocall section at the back of the Parchment (pages 56-65) of many DSBA CPD and social events. This section is likely to be non-existent in the next edition of the Parchment but it highlights the great camaraderie and friendship we enjoy as a profession.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2019/2020

TONY O’SULLIVAN DSBA President

JOSEPH O’MALLEY DSBA Vice President

DIEGO GALLAGHER Honorary Secretary

MATTHEW KENNY Treasurer

SUSAN MARTIN Programmes Director

NIALL CAWLEY Chair of Practice Management Committee

LAURA HORAN

PAUL RYAN Chair of Commercial Law Committee

JOAN DORAN Chair of Mental Health & Capacity Committee

KILLIAN O’REILLY Chair of Litigation Committee

RONAN McLOUGHLIN Chair of Property Law Committee

CIARA O’KENNEDY Chair of Employment Law Committee

GERARD O’CONNELL Chair of the Parchment Committee

AVRIL MANGAN Chair of Family Law & Minors Committee

TOM O’DWYER

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

PUBLISHED BY The Dublin Solicitors Bar Association, 1st Floor, 54 Dawson Street, Dublin 2. DSBA OFFICE, T: 01 670 6089 F: 01 670 6090 E: maura@dsba.ie DX 212011 W: www.dsba.ie ADVERTISING ENQUIRIES Donal McDonald T: 01 707 6023

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

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

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

WHEN YOU HAVE FINISHED WITH THIS MAGAZINE PLEASE RECYCLE IT.

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Spring 2020

Contents 6

The Battle for Privacy

10

DSBA Annual Book Award Winners

Julie Doyle meets campaigning solicitor Simon McGarr

Covid-19 and our New Laws

18

Termination of Wardship

22

All Things Being Equal

26

Counting the Costs

32

Two Female Parents are Forced to Lie

Matthew Kenny reviews the new Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020

Patricia Hickey provides practical guidelines on the application for termination of Wardship

Laura Graham examines the application of the Employment Equality Acts to Partnerships and certain self employed contractors

Eoin Sreenan BL looks at the Cost consequences for failing to meet a Court’s Jurisdiction

Maeve Delargy highlights an anomaly in the law that could give LGBT+ Parents ten-years in prison

34

Share Purchase Agreement Drafting – The 2010s Takeaways Conall Geraghty reflects on a decade of change and its effect on the drafting of share purchase agreements

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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THE BATTLE FOR PRIVACY... SIMON McGARR

The winners of this year’s DSBA annual Book Awards are celebrated

14

Institutionally, if the BAI doesn’t recognise that di erence is critical to proper regulation, it shouldn’t be let near the role

06


Spring 2020 dsba.ie

Contents

REGULAR FEATURES 01 04 54 56

Editor’s Note President’s Message News Photocall

14 36

Property VAT Update

38

“Without Prejudice” – The Principles and the Myths

Bruce Stanley looks at one of the most complex areas of taxation

Bill Holohan aims to clarify the meaning and effect of the term “without prejudice”

40

New Book on Family Law

44

Graham Dwyer Supreme Court Decision - Data Retention in the Spotlight

Susan Martin reviews Keith Walsh’s new family law book which will provide a great source of information and assistance to practitioners

44

Deirdre Crowley and Denise Moran address the potential implications of the recent Supreme Court referral on public and private sector employers

46

Facial Recognition Technology: Is it Time to Face the Music? Adam Finlay and Siobhán Power consider the recent EU Paper for the development and regulation of artificial intelligence

50

Implication of Portfolio Sales for Litigation Sam Collins BL gives an overview of how the Courts have been addressing litigation of portfolio sales of ‘non performing loans’.

46 the Parchment 3


Message from the President

Standing Together

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o say that my Presidential year will be a year of “two halves” would be a major understatement. As I began to write this message the World Health Organization declared coronavirus (Covid-19), a pandemic. When I came back to this message our Taoiseach, eo arad ar, had ust made his statement in ashington DC. Schools, colleges and cr ches, along with museums, galleries and other public buildings were beginning a 19-day enforced period of closure designed to interrupt the transmission of Covid-19. By the time you read this message, we will be coming close to the end of those 19 days and I sincerely hope that we are closer to a return to normality but unfortunately as was pointed out by the Taoiseach on St Patric s Day, This is the calm before the storm. Before the surge. And when it comes and it will come never will so many as so much of so few.” It looks like we will be entering a new normal. nprecedented restrictions on public life aimed at curbing the spread of coronavirus could remain in force for months. or more than 5 years, the DSBA has lived by a core value established by our original membership, to ta e care of our members. This enduring value guides us as we face the difficult challenge of responding to Covid-19. ur thoughts go out to the people who have been a ected by this unprecedented event and we appreciate the healthcare wor ers, local communities, and governments around the world who are on the front line working to contain this coronavirus. Please now that the DSBA is vigilantly monitoring the Covid-19 situation. e recognise that these are unsettling times and we want you to know that your safety and wellbeing are our rst priority. The rst half of my Presidential year seems a lifetime ago and had been exceptionally busy. It had been my privilege to represent the organisation in meeting many of the members of the profession, the Presidents and Chairs of other Bar associations, as well as the honourable members of the Judiciary. The wor of the DSBA carried on apace with seminars, tal s, social events and precedent launches, all now postponed. In particular, I want to highlight the launch of the Share Purchase Agreement by the Commercial Committee of the DSBA. This has proved to be a great success and very popular with our members. ur Annual Dinner and aw Boo Awards 4 the Parchment

were held on 28th of February and we were delighted to host arda Commissioner Drew Harris who spo e on the night and indeed took a number of questions from the audience. I want to send Commissioner Harris and all arda our full support in the difficult wee s ahead. I want to congratulate all the nominees of the Boo Awards, in particular the winners. Please see pages 10-11 for full details. As you now, the egal Services egulatory Authority ( S A) are now responsible for a large part of the legal life of practitioners. ur sub-committee continues to engage regularly with Dr. Brian Doherty, C of the S A, in order to exchange information and ideas on the profession. e are delighted to see the high ta e-up of imited iability Partnerships. Our annual Dinner for the Judiciary was held in late January and was attended by over 60 udges and 40 other guests. e were honoured with a speech from His Honour udge Colin Daly, President of the District Court. The importance of a strong legal system and the access to justice is at the very core of our democracy. We are lucky that we live in a country with a strong and independent udiciary, a judiciary recognised for its high calibre of Judges and a judiciary that has the strength of purpose to protest in support of the rule of law. In particular, I want to ac nowledge Mr ustice MacMenamin s march with dozens of Polish and uropean udges in protest against the infringement on the separation of powers in Poland and the

independence of the Polish udiciary. The DSBA welcomes and celebrates such solidarity among udges. It is this type of solidarity across all aspects of uropean life that will ensure that we will get through this crisis and we will prevail. The DSBA welcomes the udicial Council Act and sees it as a positive development for the Irish ustice System and Irish democracy. hen the crisis has passed the DSBA stands ready and willing to play its part in ensuring that the udicial Council and its committees succeed in the hard work that lies ahead for them. They will get every assistance from the DSBA President, the DSBA Council and the wider DSBA committees. I thought that my presidential year would be dominated by important milestones in the legal services sector and the justice system. I thought that the S A, the udicial Council, Brexit, Boris and Trump and how we dealt with them would be how 2020 was remembered. I thought wrong. I believe that 2020 will be remembered for one thing and that is how we came together to help each other deal with Covid-19. In years to come, let them say of us when things were at their worst, we were at our best”. Please listen to the advice of the HS , our Government and trusted news sources. Please ta e appropriate precautions for your sta , your family but also yourself. ur seminars, tal s, social events and precedent launches will all return and I look forward to that day. Tony O’Sullivan, DSBA President


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The Battle for Privacy Simon Mc arr is a man on a mission. His rm, Mc arr Solicitors, mounts public interest campaigns concerning issues of free speech, freedom of the press and civil rights in Ireland. Simon is also a director of Data Compliance Ireland, a data consultancy rm. Most recently Simon has been defending personal digital rights in Ireland which he writes about on his blog, Tuppenceworth.ie. ulie Doyle met with Simon Mc arr to discuss his most recent public campaigns

Can you tell us a little about your background and where you grew up? I m from Dublin and grew up in Templeogue. I m a product of the suburbs. What drove you to choose a career in law? I had studied lm production after graduating in Arts in CD, and then didn t li e it when I tried it. Then I wor ed in DC library and as a civil servant. ventually I studied for the 1s at night and, even more eventually, passed them. When did you qualify and where did you commence your career in law? It s all a blur at this stage. I urge anyone interested to consult the egal Directory, which I am con dent holds a reliable answer. Who has had the most influence on your career to date and why? ell, I m wor ing in a family rm, so I don t thin that would be a diďŹƒcult one to answer. Apart from my father, I thin probably a manager I had in the civil service. I still thin he was the person I wor ed for who best understood how to bring out people s talents. 6 the Parchment

Simply put, I have never been persuaded that the State had a legal basis for the introduction of the Public Services Card as a mandatory but not compulsory data collection and sharing pro ect

In your opinion how has the advancement in technology over the past 25 years changed day to day legal practice? I am going to say with the caveat that I wasn t here 25 years ago probably not all that much. The main di erence is the expectation, with email, that someone will respond in hours, instead of days to a letter. But I wor mostly in litigation, so that may be more resistant to technological enhancement than most elds. or all I now, patent law has been revolutionised. You are representing Digital Rights Ireland which is bringing a constitutional challenge against the Irish government in relation to their policy of retaining internet and telephone records on the entire population. Can you tell us about this challenge and its importance? This case has already proven signi cant. It saw an acceptance of the concept of granting actio popularis status to the Plainti body. Its referral to the C (Court of ustice of the uropean nion) saw the rst ever application of the Charter of undamental ights to existing legislation and the rst time that a Directive was struc down for being contrary


Spring 2020 dsba.ie Julie Doyle is a member of the Parchment committee

20 Minutes With...

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Photography: Bryan Meade

The State (or any commercial body) simply couldn t hire enough agents in trench coats to eep the entire population under surveillance. ow mobile phones and increasingly, facial recognition tech ma e that universal panopticon possible to the Charter. As a conse uence, the law of the was shown to be subordinate Having worked in the public sector, has this given you an insight into the process of government regulation and policy? Is this process transparent? Perhaps I d say it s more that you understand how decisions end up being ta en, and can spot the direction pro ects are headed in. The process is emphatically not transparent because, as anyone who has tried to follow decision ma ing solely from the records will attest, it mostly ta es place inside people s heads. Also, the public sector can be surprisingly emotional in its decision ma ing. 8 the Parchment

GDPR has strengthened the understanding of the importance of personal data amongst the public. Do you believe that organisations are taking it seriously enough? I thin they are. I thin where most organisations feel they need assistance is on the uestion of How How to give e ect to their intentions to do the right thing. That was what prompted me to establish Data Compliance urope people wanted to understand the practicalities of implementing the DP , instead of ust loo ing for legal advice on it. That seemed to t more into the consultancy model.

Since the introduction of the Public Services Card you have been very vocal about privacy concerns of the retention of citizens' personal data and the use of a national ID biometric database. Can you tell us about your concerns and your campaign to date? Simply put, I have never been persuaded that the State had a legal basis for the introduction of the Public Services Card (PSC) as a mandatory but not compulsory data collection and sharing pro ect. The Data Protection Commission has, after a lengthy investigation, issued a report with the same conclusion. The Data Protection Commissioner Helen Dixon has since investigated those concerns and issued her report and found that there was, or had been, noncompliance with the applicable provisions of data protection law. In short what were those findings? The Commission found that the legislative provisions used to ustify the development of the PSC data sharing pro ect were insuďŹƒcient to bring it in to compliance with Data Protection legislation.


Spring 2020 dsba.ie

20 Minutes With...

In your investigation of various public interest campaigns you have carried out a number of requests under the Freedom of Information Acts. How have you found this process and do you believe there is sufficient transparency? Is there room for further reform? The I process is as strong as its regulator re uires it to be. At the moment, I have not found that I is a particularly strong tool. Most recently you have spoken out about the redaction or withholding of adoption information in personal records released to individuals by Tusla. What do you believe is the conflict between GDPR and the provisions of the Adoption Act, 2010 upon which Tusla is relying? Bluntly, one is law and one is national law, and you can t rely on a national law which doesn t meet the law re uirement of necessity and proportionality. Social Media has become a normalised part of everyday life. Do you believe that there is a need for further education in the public on the interaction of civil rights and social media laws? Has technology essentially eroded the right to privacy? I thin it will be an embarrassing day when the legal profession tries to educate the public on technology. onetheless, the profession s generally reluctant embrace of change notwithstanding, there is some value in the perspective of lawyers on the impact of technology on elements of society we have ta en for granted. Privacy has, more than was commonly recognised perhaps, been reliant on a lac of resources. The State (or any commercial body) simply couldn t hire enough agents in trench coats to eep the entire population under surveillance. ow mobile phones and increasingly, facial recognition tech ma e that universal panopticon possible. That s where we need people to spea about the legal rights to privacy which, if upheld, will ensure that ust because it is possible it doesn t become normal. What do you think about the Broadcasting Authority of Ireland proposals to regulate harmful online content on social media platforms? I thin the BAI proposal is the best argument available against the BAI being made a regulator of online content. Ta en on its own merits, it argues that online communication should be regulated to the same principles and degree as broadcast media. This is to completely misunderstand the di erence between communication and broadcast. Institutionally, if the BAI doesn t recognise that di erence is critical to proper regulation, it shouldn t be let near the role.

I thin there is an urgent need to regulate political advertising and hypertargeted messaging which has the capacity to undermine the shared set of facts which is necessary for a functioning liberal democracy. nfortunately the BAI s proposals (when they aren t simply implementing an Directive) are focussed on something else entirely

the fallacy of extending the model of regulating broadcast (and broadcasters) to try to regulate communications , including private one-to-one communications. Finally, what do you predict for the future of online privacy? If only I new. P the Parchment 9


Ciaran Joyce, Emma Jane Prendergast, Dr. Tom Hickey, Commissioner of An Garda Síochána Drew Harris, Paul English representing sponsors Peter Fitzpatrick and Co. Legal Cost Accountants, Keith Walsh, chair judging panel, DSBA President Tony O’Sullivan and Mark Tottenham BL

DSBA hosts Book Awards The rule of law was the underlying theme of this year’s DSBA Annual Spring Gala and Law Book Awards held in the Westin Hotel on Friday 28th February 2020

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SBA President Tony O’Sullivan of Beauchamps hosted the Gala and was joined by his wife Deirdre Walsh and over 200 guests and colleagues. The guest of honour was the Commissioner of An Garda Síochána Drew Harris who spoke on changes in An Garda Síochána and took uestions from the oor. Mr ustice Peter Charleton spoke for the family of the late Paul Anthony McDermott and paid a personal and professional tribute to his deceased friend and colleague. The udging panel for the law boo awards was chaired by Keith Walsh and the panel comprised Áine Hynes, Stuart ilhooly and ohn eary. In his keynote address, Tony modelled his speech on the aw rder theme yes the T show aw rder . He started with the lawyers by touching on the important milestones in the legal services and justice sector namely the establishment in earnest of the egal Services egulatory Authority ( S A) and the role of the DSBA in emphasising the work of solicitors and their contribution to the prosperity of the economy, society and our justice system. He stated

10 the Parchment

that the fabric of society depended on legal rights and obligations being validly created and e ectively enforced. The DSBA President stressed the importance of a strong and independent udiciary, which in Ireland is recognised for the high calibre of its udges and for having the strength of purpose to protest in support of the rule of law. He also ac nowledged Mr. ustice McMenamin s recent march with Polish and European in protest against the infringement on the separation of powers in Poland and the independence of the Polish udiciary. He uoted ustice McMenamin Protection of the rule of law is a legitimate business AND the legitimate duty of judges”. Tony went on to welcome the udicial Council Act and saw it as a positive development for the Irish ustice System and Irish democracy and indicated that the DSBA stands ready and willing to play its part in ensuring that the udicial Council and its committees succeed in the hard work that lies ahead for them. They will get every assistance from the DSBA President, the DSBA Council and the wider DSBA committees”. He highlighted the importance of stability, predictability


Spring 2020 dsba.ie

News

Photography: Cian Redmond

Commissioner of An Garda Síochána Drew Harris, widow of the late Paul Anthony McDermott – Annick Hedderman, James McDermott B.L., Carol Plunkett representing sponsors Law Society Finuas Skillnet, Keith Walsh, chair judging panel, DSBA President Tony O’Sullivan

Professor John Wylie, Commissioner of An Garda Síochána Drew Harris, Diego Gallagher representing sponsors Byrne Wallace, Keith Walsh, chair judging panel, DSBA President Tony O’Sullivan

and the fairness of the legal framework” as crucial for business and stated that strong independent legal institutions are essential, not just to protect individual citizens’ rights but also to protect companies from arbitrary decisions by governments”.

DSBA Award for outstanding contribution to legal scholarship, posthumously awarded to Paul Anthony McDermott The DSBA paid tribute to the late Paul Anthony McDermott by presenting a leather bound inscribed copy of the book he co-wrote with his brother ames-Contract aw (2nd edition) to ames and Paul Anthony s widow Annic Hedderman McDermott, in posthumous recognition of the outstanding contribution of the late Paul Anthony McDermott S.C. to legal scholarship over his lifetime. Paul Anthony was possessed of great natural gifts as an advocate and academic but, as in the parable of the talents, he put his talents to work and made the very best of them. One of his many exceptional gifts was precision and brevity in argument. n the night, udge Charleton friend, colleague and co author spoke of his devotion to his friends and family. It was only two years ago that he was last nominated for and attended the DSBA law book awards with ames. hile this award was made with a heavy heart his family, colleagues and friends will continue to recall his capacity for friendship and exceptional ability and work ethic as well as his generosity of spirit. The Dublin Solicitors Bar Association on behalf of Dublin solicitors was honoured to acknowledge Paul Anthony’s outstanding contribution to legal scholarship and to pay tribute to his exceptional skills as an advocate. The award was kindly sponsored by Law Society Finuas Skillnet.

Winner of the DSBA Irish Law Book of the Year 2020 – sponsor Byrne Wallace Wylie & Woods, Irish Conveyancing Law, 4th edn RRP €275, Bloomsbury Professional

Winner of the DSBA Practical Irish Law Book of the Year – sponsor Peter Fitzpatrick & Co., Legal Cost Accountants oint winners Doyle and Hic ey Constitutional Law: Text, Cases and Materials, 2nd edn P 9 Clarus Press & Tottenham, Prendergast, oyce Madden, A Guide to Expert Witness Evidence P 175 Bloomsbury Professional

Outstanding contribution to legal scholarship award – the late Paul Anthony McDermott S.C. – sponsor Law Society FinuasSkillnet The DSBA would especially like to thank its sponsors for the Annual Boo Awards Byrne allace Solicitors, Peter Fitzpatrick and Co. Legal Cost Accountants and Law Society FinuasSkillnet. P the Parchment 11


Covid-19 and Our New Laws In unprecedented times, the Oireachtas has passed the Health (Preservation and Protection and other mergency Measures in the Public Interest) Act 2020. Matthew Kenny provides an overview of the new legislation

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ith most of the nation self-isolating on the Saturday before St Patric s wee end there was some anger at social media images of people en oying festivities in a pub in Temple Bar, Dublin. By Sunday 15th of March the Minister for Health announced the closure of all public houses. This appears to have been with the voluntary assistance of the vintners rather than by statutory compulsion. By riday the 20th March the Health (Preservation and Protection and other mergency Measures in the Public Interest) Act 2020 had been rushed through the ireachtas and signed by the President. The debates in the ireachtas illustrate that there was cross party support for the bill and there is to be more legislation and Ministerial regulations to follow in the coming wee s. The need for all of the people to do their civic duty and self-isolate, socially distance from others and adhere to the direction and health advice of the overnment begs the uestion - what legislation exists to force those who o end the new norm but who may not be o ending the 2020 Act

A Summary of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 The act legislates for matters of public health due to Covid-19 and nancial support for persons adversely a ected by the economic uncertainty Covid-19 is causing. 14 the Parchment

Covid-19 Pandemic Payment This new payment will be available to employees and self-employed people who have lost employment due to a downturn in economic activity caused by the Covid-19 pandemic. It will be paid at a at rate payment of 50 per wee .

If you are Sick and Cannot Work If you are certi ed by your doctor as needing to self-isolate due to Covid-19 you can see a payment of 50 per wee .

Parents who Must Stay at Home to Look After Their Children Sub ect to regulations being published post 20th of March it does not appear that employed persons who ta e time from wor to loo after their children due to the closure of schools and creches are entitled to any social protection payments.

Public Health It is important to note that the public health part of the 2020 Act is an addition to the 1947 Health Act (which was enacted to combat tuberculosis) and that as Deputy im Callaghan remar ed in the Dail debate on the 19th of March “since 1947 a Minister for Health has had the power to issue regulations to prevent the spread of infectious diseases. It is a power that exists under section 31 of the 1947 Act and it has not been abused since that time in any way�


Spring 2020 dsba.ie Matthew Kenny is a partner in O’Sullivan Kenny Solicitors. He is a Council member of the DSBA

Covid-19 was listed as an infectious disease under the 1947 Health Act regulations in ebruary. Section 10 of the 2020 act allows the Minister to regulate to restrict the movement of persons within the State and at our borders. The Minister may order that persons remain in their homes and also restrict the holding of events and or regulate all such events as he sees t. The Minister must show that his regulations. “for the purpose of preventing, limiting, minimising, or slowing the spread of Covid-19 (including the spread outside the State) or where otherwise necessary, to deal with public health risks arising from the spread of Covid-19” Section 10 recognises the fact that this is a pandemic and therefore a national emergency and that the reason for such powers to be delegated to him is because. “there is an immediate and manifest risk to human life and public health as a consequence of which it is expedient in the public interest that extraordinary measures should be taken to safeguard human life and public health”.

The Power to Penalise Those who do not Comply In the event of the Minister ma ing regulations section 10 allows for those who do not comply with those regulations to be arrested without warrant. The conse uences of an arrest are that at the discretion of An arda S och na the person may be brought before Court without delay or in the future. It is therefore the will of the ireachtas in the 2020 Act

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to give the arda powers to ensure compliance with the regulations to protect the health of all.

A Prosecution Arising from Section 10 Regulations The criminal sanctions within the 2020 Act are not novel. Section 1 of the 1947 Health Act allows for the Minister for Health to ma e regulations and for those regulations to impose penal sanctions to include the potential for imprisonment. The most notable di erence between section 1 and the new section 1A is that a District udge can now impose an immediate prison sentence for one single and rst o ence whereas before the 2020 Act prison was only possible for a second or continuing o ence.

Affected Area Orders Section 1(B) allows the Minister to declare an area in the State an area. “where there is known or thought to be sustained human transmission of Covid-19 or from which there is a high risk of importation of infection or contamination with Covid-19 by travel from that area” It does appear that the wording throughout the 2020 Act is designed to show that the ireachtas had the clear intention that these emergency laws are proportionate and are based upon a coherent set of principles in the hope that they will withstand a constitutional challenge.

The most notable di erence between section 1 and the new section 1A is that a District udge can now impose an immediate prison sentence for one single and rst o ence

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Civil Detention for Sick Persons

ven though we are in a time of emergency it is a potential source of criticism and illegality that section A does not allow for the appointment of a solicitor to assist the involuntarily detained person in the same way our Mental Health Act does

Separate to the power to criminalise and imprison there are additional powers in section A of the 2020 Act. The a ected person must be a potential source of infection, they must be a potential ris to public health, their detention must be necessary to prevent the spread of Covid-19 and reduce the ris to other s health and life. If a medical officer believes those circumstances exist, then there must be grounds to show that person will not or cannot be isolated from others. In the event of civil detention, the medical officer must certify the grounds are met in writing and have the a ected person reviewed by another medical officer within 14 days. The a ected person may see a review of their detention by a medical officer.

Potential for Illegality ven though we are in a time of emergency it is a potential source of criticism and illegality that section A does not allow for the appointment of a solicitor to assist the involuntarily detained person in the same way our Mental Health Act does. The Minister may wish to compare the Health Act 1947 and the Mental Treatment Act 1945 which was repealed in full by the 2001 Mental Health Act. The provision of legal representation is enshrined in our modern Mental Health Act since 2006. n the other side of that legal tension there is the udgment of dwards in TS v The Health Service and thers 2009 I HC 106 which is a very detailed and helpful discussion of section of the 1945 Health Act and the powers of civil detention in the context of infectious diseases.

Criminal Sanctions for Obstructing Civil Detention Orders Section (A)(7) allows for the arrest and potential imprisonment for up to three months of those who either try to prevent a person being detained or help a person escape their detention.

Sunset Clauses It is proposed that sub ect to any worsening of the national emergency, that the 2020 Act would repeal itself on 9th of May regarding social welfare payments and on the 9th of ovember regarding powers to restrict the movements of people and to detain persons involuntarily.

A History of Emergency Legislation The State has legislated for emergencies before. It sought to ensure the protection of the community in 1926 with their The Protection of the Community (Special Powers) Act 1926. The 1926 Act was an emergency reaction to pro teering and hoarding in Ireland as a result of the British eneral Stri es of May 4th through to May 12th. The Act was presented to the Dail for a rst stage debate on May the 12th 1926 and enacted on May 17th, 1926. It was remar ed by President .T. Cosgrave in addressing the Dail on the necessity of the act that. “Hoarding is a problem with which it is much more difficult to deal. It may be, and I hope it will be, unnecessary to exercise any of the powers which are asked for in this Bill, but they are powers which in special circumstances ought to be in the hands of the Executive Council – powers for the protection of the 16 the Parchment

community and ensuring the due supply and distribution of the essentials of life during national emergencies.” e have seen politicians complaining that their constituents are being charged 50 for face mas s in some chemists. Can the State rely on section 2(1)(a) and (d) to price x essential goods and services 2.—(1) Whenever a proclamation is made by the Executive Council under this Act, the Executive Council may while such proclamation remains in force make by order such regulations as they shall think proper for— (a) ensuring the due supply and distribution of the essentials of life to the community (d) regulating and controlling the prices charged by traders (whether wholesale or retail), distributors, and others for any such necessaries or for the carriage or distribution thereof.

Public Safety (Emergency Powers) Act of 1926 and The Emergency Powers Act of 1939 The Public Safety ( mergency Powers) Act of 1926 was enacted within two days of being brought before the Dail for a rst reading and was a direct result of the illing of two members of An arda S och na. This act was repealed in full by the ences Against the State Act of 19 9. either were intended to deal with a pandemic. The mergency Powers Act of 19 9 would have assisted as it allowed (1)The Government may, whenever and so often as they think fit, make by order (in this Act referred to as an emergency order) such provisions as are, in the opinion of the Government, necessary or expedient for securing the public safety or the preservation of the State, or for the maintenance of public order, or for the provision and control of supplies and services essential to the life of the community. However, it was repealed in full by the 2016 Statute evision Act. hat other laws exist to help prevent public disorder or criminality arising from Covid-19

The Criminal Justice Public Order Act 1994 The 1994 Act is an act An arda Siochana now well. Could the ardai invo e sections 5 or of the 1994 Act and either demand people return to their homes or desist from behaving in a manner which they deem to be o ensive. Disorderly conduct is (3) In this section “offensive conduct” means any unreasonable behaviour which, having regard to all the circumstances, is likely to cause serious offence or serious annoyance to any person who is, or might reasonably be expected to be, aware of such behaviour. Section of the 1994 Act legislates for a failure to comply with direction of member of arda S och na to desist and leave the area with arrest for those who do not do so. It allows for such a power to be invo ed if an o ence under section 5 is suspected or if the person ( b) without lawful authority or reasonable excuse, is acting in a manner which consists of loitering in a public place in circumstances, which may include the company of other persons, that give rise to a reasonable apprehension for the safety of persons or the safety of property or for the maintenance of the public peace, If we imagine a scenario where, as of now, the


Spring 2020 dsba.ie

News

Minister has not gone so far as to ma e an order under the 2020 regulations to re uire people to remain indoors, but a member of An arda S och na believes a person is not respecting social distancing in a public place or persons are meeting in groups. The arda believes that person or persons behaviour is or may upset a member(s) of the public. Can the arda give them a warning under section 5 or of the 1994 act to desist and or to move away from the persons a ected

in section 5(3) would now refer to ‘any unreasonable behaviour which having regard to the circumstances is likely to cause serious offence or serious annoyance’. It is hard to imagine a more serious annoyance or serious o ence being caused to others than persons ignoring health advice that the ma ority of the citizens are willing to comply with, especially as their behaviour endangers others.

Offensive Conduct

It is clear that our vintners have voluntarily closed their public houses and they should be than ed for that. It is also reported that rogue licensed premises that do not remain closed may have their licences ob ected to in September in their local District Court when they are up for renewal. However, section 19 of the Intoxicating i uor Act 1927 empowers An arda S och na to act now “19.—(1) Whenever the Justice of the District Court is satisfied on the written application of a Superintendent or Inspector of the Gárda Síochána that in the interests of public peace and order it is expedient that the sale of intoxicating liquor should immediately cease in any town or village in the licensing area, such Justice may order the immediate closing for the remainder of that day, or for such shorter period as he may deem adequate, of all premises licensed for the sale of intoxicating liquor in such town or village.”

Is there a lac of certainty on what a term li e o ensive conduct means King v. A is the timeless authority. It concerned the loitering o ence under the agrancy Act, 1 24 and provides that a trial for any o ence de ned in vague and uncertain language is not a trial in accordance with Article .1 of the Constitution. ould the arrest and prosecution of a person who does not self-isolate or respect social distancing withstand legal challenge In our current health crisis is the failure of an individual to adhere to the new norm ‘unreasonable behaviour which, having regard to all the circumstances, is likely to cause serious offence or serious annoyance to any person who is, or might reasonably be expected to be, aware of such behaviour’? The Court of Appeal delivered a udgment in Bita v DPP rs on riday 1 th of March in which it considered the analogous public decency legislation in section 5 of The Summary urisdiction (Ireland) Amendment Act 1 71. In re ecting the appeal of Mr Bita, who suggested criminalising urination in public was so vague and uncertain as to mean he could not obtain a fair trial, the Court of Appeal remar ed “whether at common law or by statute law, a concept such as indecency may evolve to incorporate contemporary understandings. That does not make the offence uncertain, but it is a recognition that the law must be able to keep pace with changing circumstances” hen the 1994 act was being debated in the nal stage in the Seanad, Minister for ustice Ms M ire eoghegan- uinn agreed to an amendment to section 5 and sternly informed the Seanad “The effect of the amendment would be that the definition

Closure of Public Houses and the Restriction on Movement

Summary It does appear that the ireachtas and President have acted fast and they deserve our praise. The coming days, wee s and months are going to bring challenges to us all, both personally and professionally. The legal profession must be in a position to o er independent and ob ective legal advice to our clients during this emergency. The State s history of legislating for emergency powers to combat subversive armed groups is well nown, but the power of our dormant, existing and new laws to combat the threat of a global pandemic, which may ill more people in less time, has yet to be seen in the coming months. P the Parchment 17


Termination of Wardship Patricia Hickey provides practical guidelines on the application for termination of Wardship Current Situation - Lunacy Regulation (Ireland) Act 1871

A Ward of Court may apply to be discharged from Wardship on recovery and resume management of his/her own a airs

The current regime of Wardship remains in place until commencement of the Assisted Decision Making Capacity Act 2015 ( the Act ). nce commenced no applications will be made to the Wardship Court for a declaration for adult ardship (minors are excluded from the Act). All future applications, once Part 6 of the Act is commenced, for vulnerable adults who require court assistance will be made to the Circuit Court. nder Part 6 of the Act, during the three years from date of commencement all adult Wards must be discharged from ardship. The current regime already permits discharge from ardship on a minor attaining ma ority, recovery of capacity and on the death of a ard.

Discharging a Minor from Wardship If a minor reaches the age of majority and is assessed as lac ing mental capacity, then an application under the adult ardship process is commenced. therwise, when the minor reaches ma ority, an application is submitted see ing discharge from ardship and, an order of discharge, dealing with any outstanding liabilities, is made. The process for bringing a minor into and discharging from Wardship is dealt with under rder 65 of the ules of the Superior Court. The former minor applies for discharge from ardship by submitting an affidavit exhibiting their birth certi cate to the egistrar of ards of Court and setting out any claims or costs outstanding. nce discharged the balance funds held in Court are released to the former minor.

Discharging an Adult from Wardship An adult Ward may be discharged from Wardship either on recovery of capacity or on the death of the ard. The rules applicable to adult ardship are dealt under rder 67 of the ules of the Superior Court.

Recovery of the Ward A Ward of Court may apply to be discharged from Wardship on recovery and resume management of his/ her own a airs. The practice is that a medical report is submitted to the egistrar of ards of Court setting out that the ard has recovered. The egistrar, under the direction of the Court, will arrange for a medical 18 the Parchment

visitor, usually a psychiatrist, to visit with the ard for the purposes of preparing a report for the Court on the capacity of the ard. If the medical visitor is in agreement that the ard has regained capacity, then the President of the High Court may make such order as the circumstances re uire. This usually involves an order restoring the Ward to possession and management of his her property, discharging the Committee and discharging the person from ardship.

Death of the Ward During the term of ardship if a ill is nown to exist then the riginal ill is lodged with the egistrar of ards of Court for safe eeping and custody. The riginal ill is to be placed in an envelope, sealed and exhibited to an Affidavit of Plight and Condition and personally delivered to the egistrar. n the noti cation of the death of the ard to the egistrar of ards of Court, the egistrar may open and read the Will or other testamentary papers for the purpose of ascertaining who is the nominated executor and whether there are any funeral directions. The riginal ill and Affidavit are immediately remitted to the Probate Dublin egistry ffice. The egistrar does not certify that the ill is valid or that it is the last Will and Testament of the deceased Ward which is a matter for the egal Personal epresentative. The xecutor named in the ill can then apply to the Probate ffice for a certi ed copy of the ill and will use the certi ed copy in any application for a rant of epresentation. ften the Probate ffice will re uire an affidavit of testamentary capacity due to the testator status as a ard of Court. If there are sufficient funds in Court, then an application can be made by the ard s next of in or xecutor to the Committee or the egistrar to have the funeral and testamentary expenses discharged from these funds. If the ard has not made a ill (intestate) and the ard s funds are under 25,000, this includes all funds and property in and outside of Court, then an application can be made by the next of in to have these funds paid out, without the necessity of extracting etters of Administration. Such an application is made by completing and swearing Form 1 ( 67 r92 of the ules of the Superior Court). In determining the extent of a deceased ard s funds, a


Spring 2020 dsba.ie Patricia Hickey is general solicitor for Minors & Wards of Court

funeral bill or other small amounts may be paid to bring funds below the ceiling of 25,000. However, signi cant debts may not be o set to reduce the assets value to below 25,000 and a rant of epresentation will be re uired. The Committee will apply to the Court to have the ard s estate dismissed from ardship. A Statement of acts on Dismissal is lodged in the ffice of the ards of Court setting out the assets and liabilities known to the Committee of the Ward as at the date of death. The Committee should contact all parties that they had contacted during the term of Wardship to advise of the death of the ard and that the Committees function ceases. This can include utility companies, insurance companies, nancial institutions, nursing home support office, and evenue Commissioners. In any event, contact would have to be made to all parties to seek information at date of death to prepare Statement of acts. The ffice of the ards of Court will draft the rder based on the information contained in the Statement of acts led. The Statement of acts will contain the details pertaining to the date of death and will include the date of death, whether the ard died testate or intestate, the claims and demands against the estate for costs, maintenance (nursing home fees and payments due under nursing home support scheme/ fair deal) or otherwise, the next of in, legal personal representative details, the assets and the funds held in Court. Any costs arising during the course of Wardship on behalf of the committee or solicitor acting on behalf of the Committee are a claim against the estate. The bill of costs should be directed to the ffice of the ards of Court for measurement and payment from funds held in Court, if any. If there are no funds held in Court, then any claims arising should be dealt with by the legal personal representative in the course of administering the estate. In default of agreement of costs, it is open to the committee/solicitor to have the costs adjudicated in the normal way. n the death of a ard, the functions and powers of the Committee cease and when the Dismissal rder issues, the ard s monies held in Court will be paid out to the egal Personal epresentative on the production of the rant of epresentation. The funds held at date of death will not be the sum that will be paid out on production of rant as deductions shall be made from the funds in Court. The deductions will include court percentages (a levy based on ard s income, which levy is capped annually), court fees (e.g. fee for measuring a bill of costs) stamp duty, exit tax (tax payment made to evenue Commissioners annually on gains made on sums withdrawn), solicitors Committee fees costs and outlays, funeral expenses, payment of nursing home fees, and claims and expenses by third parties. It is important to remember that any matters which arose during the term of Wardship fall to be dealt with by the egal Personal epresentative ( P ). This may include court proceedings, probate and administration of an estate, conveyance, licensing law and any other legal issue arising. Conveyance it can arise that on the death of a ard

Wardship

the Committee was in the process of selling a property on behalf of the ard. The Committee cannot continue with the sale/purchase and the matter must be dealt with under probate. If the sale completed prior to death and the only outstanding matter was the lodgement of net proceeds in court this can be lodged to court after death as the court order directed same. If, however, the contracts for sale were executed by the Committee and the sale had not completed, then it is similar to the death of a person who was not a Ward and the P must deal with same. Litigation when a ard dies and proceedings were issued by the Committee on behalf of the Ward then it is a matter for the P to either reconstitute or discontinue the proceedings. The only outstanding matter for the Committee and the solicitor is to come o record, ensure the title to the proceedings are amended to remove Committee name and a costs order or undertaking provided to deal with the costs to date of death. Probate and Administration If the Committee acted in the administration of an estate on behalf of the ard, then on the death of the Ward they should apply to immediately revo e the rant which would have been limited to the term of the committee acting. P the Parchment 19


SeĂĄn Canniffe is an associate at Beauchamps Solicitors

Contract Law

Unfair Terms in Consumer Mortgage Agreements Se n Canni e examines a recent Supreme Court decision provides important guidance on whether a borrower s mortgage agreement contained any unfair terms under the C ( nfair Terms in Consumer Contracts) egulations 1995 (S.I. 27 1995) (the egulations)

Mr ustice Barrett held that a Court, when considering a consumer contract, must conduct an assessment of whether it contains any unfair terms

T

he case of epper inance Corporation (Ireland) DAC v rian Cannon and Christina Cannon 2 2 IESC 2 concerned an rder for repossession of the borrowers home by the County egistrar. The borrowers failed to appeal that decision on time. The High Court refused their application for an extension of time. This refusal was subse uently appealed to the Supreme Court. The substantive issue in the appeal was that the County egistrar failed to assess the fairness of the terms of the borrowers mortgage agreement with the lending institution as re uired under the nfair Terms in Consumer Contracts Directive (implemented here by way of the egulations). The borrowers argued that AI v Counihan ought to be applied. In that case, Mr ustice Barrett held that a Court, when considering a consumer contract, must conduct an assessment of whether it contains any unfair terms. The lender argued that this case was, in fact, considered by the County egistrar. The borrowers argued that the following terms of their loan agreement were unfair 1. The price variation clause. This is the provision that the interest rate would vary at the lender s discretion 2. The acceleration clause. This is the provision entitling the lender to demand early repayment if there is a failure to pay on the due date. It also

refers to the power to enter into possession of the property in the event of a missed payment or other breach and . The transfer of rights clause. This is the entitlement of the lender to sell on all or part of the security without notice to the borrower.

Decision The Supreme Court decided 1. n the face of it, the price variation clause comes within the exemption in the egulations permitting a lender to reserve the right to alter the interest rate without notice where there is a valid reason. The Court also noted the protection a orded by the 2016 Consumer Mortgage Credit Agreements egulations, which includes an obligation that a lender must inform borrowers of any change in their interest rate. 2. An acceleration clause might well be found to be unfair if it permitted the lender to call in the entirety of the debt and enforce the security in the event of a single late or missed payment. However, the court noted a number of measures that prevented such a result. These included the obligation to serve notice on a borrower in the event of default and the Central Ban Codes of Conduct. . There have been a considerable number of decisions endorsing the views of Peart . in Wellstead v Judge White eatherstonhaugh that transfer of rights clauses are neither unusual, mysterious nor unlawful. The Court also noted that the borrowers had not given any indication as to how the clause in this case would have been unfair to them. The Court also held that County egistrars, in possession cases, should consider consumer contracts for the purpose only of deciding whether there is a potential defence to the lender s claim. If there is a potential defence, the matter should be transferred to a Circuit Court udge.

Takeaway This decision gives welcome guidance by the Supreme Court on ey terms contained in virtually all consumer mortgage agreements as borrowers will now have diďŹƒculty in arguing that these terms are prima facie unfair. The decision also clari es the role of County egistrars in possession proceedings. P 20 the Parchment


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Equality is Not Just for Employees Laura Graham examines the application of the Employment Equality Acts to partnerships and certain self-employed contractors

T

he mployment uality Acts 199 -2015 (the Acts ) prohibit discrimination based on any of the following nine grounds: gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. Discrimination is generally de ned as less favourable treatment on any of those grounds. The title of the Acts is somewhat misleading. At rst glance, it appears that the Acts apply only to employment relationships. This is not the case. The protection of the Acts extends beyond employees and also protects partners and certain self-employed contractors.

Application of the Acts to Partnerships Section 1 A of the Acts (inserted by section 7 of the uality Act 2004) amends the application of the Acts to partnerships. That section provides 1 This Act applies to a partner in a partnership as it applies to an employee and accordingly has effect with the modification that (a) references to an employee include references to such a partner, and (b) references to an employer include references to a partnership, and with any other necessary modifications. 2 In subsection (1) references to a partner shall be construed, in the case of a limited partnership, as references to a general partner, as defined in section 3 of the imited artnerships Act 19 . Irrespective of the terms of a Partnership Agreement, partners are prohibited from treating a prospective partner or a fellow partner less favourably on any of the nine protected grounds. 22 the Parchment

Discrimination may arise in a number of circumstances, including, inter alia, the following (a) access to a partnership, (i.e. the factors for determining who should be admitted to the partnership) (b) conditions on which partnership is o ered (c) access to opportunities as between partners (d) grounds for expulsion from a partnership.

Compulsory Retirement as an Example Compulsory retirement of a partner may give rise to a claim for age discrimination. This situation arose in the UK case of Seldon v Clarkson Wright and Jakes (2012) UKSC16. Mr Sheldon was an e uity partner in a law rm. At the end of the year in which he turned 65, Mr Sheldon was given notice to retire, pursuant to mandatory retirement provisions in the partnership deed. He argued that his compulsory retirement constituted discrimination on the grounds of age. The Firm accepted that Mr Seldon’s compulsory retirement was direct age discrimination, but said that it was ob ectively usti able to achieve its legitimate aims which were identi ed as • Staff retention: retaining associates by being able to o er them the opportunity of partnership after a reasonable period • Workplace planning: facilitating planning with realistic expectations as to when positions would become available and • Dignity: avoiding expulsionof partners through performance management. Unlike other forms of discrimination, direct age discrimination is permitted in Ireland provided it is


Spring 2020 dsba.ie Laura Graham is a partner at Reddy Charlton and specialises in Employment law

“ob ectively and reasonably ustified by a legitimate aim” and “the means of achieving that aim are appropriate and necessary”. Similar provisions apply in the UK. Ultimately, the Supreme Court held that the Partnership had identi ed legitimate aims (sta retention, wor force planning and dignity) which could ob ectively ustify Mr Sheldon s compulsory retirement provided his retirement age was a proportionate means of achieving those aims. The Supreme Court remitted the case bac to the employment tribunal which decided that the mandatory retirement age was a proportionate means of achieving the retention and planning aims. Businesses, including partnerships, need to identify and document the speci c legitimate aim and ob ective usti cation that it intends to rely on to enforce compulsory retirement. The legitimate aim should be stress-tested to ensure that it can withstand robust scrutiny to defend a claim for age discrimination, as is demonstrated by the Roper case. The or place elations Commission ( C) decision in Roper v RTÉ (2019 AD -000190 4) demonstrates that the WRC will carefully examine ob ective usti cations advanced by a business to enforce compulsory retirement. Ms Roper worked with RTÉ since 1988, most recently as an executive producer. Coming up to her retirement, Ms oper re uested that she be permitted to continue working past the retirement age for a further 18 months. RTÉ refuses that request and compulsorily retired Ms oper on her 65th birthday. Ms

Employment Law

Roper took a case to the WRC. The WRC found that RTÉ had discriminated against Ms Roper on the grounds of age and awarded her 100,000 as compensation. At the hearing RTÉ advanced the argument that her mandatory retirement was ob ectively usti ed on the basis of “intergenerational fairness”. While this usti cation is well established in both uropean and domestic law, the WRC held that in this case the mandatory retirement of Ms Roper, fell “considerably short” of contributing to intergenerational fairness in RTÉ. In scrutinising the usti cation of “intergenerational fairness”, the Ad udication fficer ( A ) ac nowledged that Ms Roper’s retirement had resulted in her position being lled internally and a further person being recruited externally. However, the A held that the impact of Ms Roper’s compulsory retirement was limited to her department and as a method of achieving intergenerational fairness, it fell considerably short.” It was held that the decision to compulsorily retire her was disproportionate and it was difficult to see a connection between Ms oper s retirement and the ob ective of “intergenerational fairness”, as others had been permitted to stay beyond the retirement age. Identifying a legitimate aim is not ust a box-tic ing exercise. Care needs to be ta en to ensure the aim is actually relevant to the circumstances and evidence can be produced of the practical implementation of the aims sought to be achieved. This applies e ually to compulsory retirement in a partnership.

The Supreme Court remitted the case bac to the employment tribunal which decided that the mandatory retirement age was a proportionate means of achieving the retention and planning aims

the Parchment 23


The WRC deals with complaints of discrimination, while claims of discrimination on the basis of gender may be brought before the Circuit Court

Application of the Acts to certain self-employed contractors In the abour Court case of Moyne Veterinary Clinic and atasha owacki (EDA 19 ), Ms Nowaki, a veterinary surgeon, claimed that she had been discriminated against on the grounds of gender and family status by the partners in the Moyne Veterinary Clinic. At rst instance, the A held that Ms owac i was not an employee and accordingly, she could not pursue her claim under the Employment Equality Acts. Ms owac i appealed that decision to the abour Court. The abour Court examined the provisions of section 2 of the Acts which de nes a contract of employment as (a) contract of service or apprenticeship, or (b) any other contract whereby (i) an individual agrees with another person personally to execute any work or service for that person, or (ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 19 1 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract) whether the contract is express or implied and, if express, whether oral or written” Section 2( )(d)(i) provides “references in this Act to an employee shall be constructed as references to the party who agrees personally to execute the work or service concerned and reference to an employer as references for whom it is to be executed.” The abour Court noted that “nature of the relationship between the parties was not employer employee”. However, it went on to say that “employment under a contract of service is not a condition precedent to locus standi under the Acts. The Acts apply to a person employed under a contract of employment. However, it is clear that that term is given a much broader meaning than under other employment enactments. The definition brings 24 the Parchment

within its ambit a person employed on “any other contract” which can include a person employed on a contract for services provided that the person provides services personally “The uestion as to whether or not a self-employed person comes within the ambit of the Acts, is answered by Article 1 of the ecast Directive 2 5 EC and Article 3 of the ramework Directive 2 EC, both of which make it clear that the principle of non-discrimination extends to self-employed persons. The ace Directive 2 3 EC also brings self-employment within the scope of Article 3. The Employment E uality Acts are intended to implement these three Directives and must be interpreted in conformity with each of them. It follows that the broad definition of a “contract of employment” as defined by the Acts must be interpreted as intended to bring self-employed persons within the ambit of the Acts so as bring the Acts into conformity with the personal scope of the Directives.” The abour Court held that given the “broad definition under Section 2 of the Acts”, and the fact that Ms Nowacki was required to “personally execute” the wor assigned to her by the practice, that she was an employee of the veterinary practice under a contract of employment for the purposes of the Acts. This decision ma es it clear that the ambit of the Acts extends to encompass self-employed contractors who provide services personally as such persons will be considered employees for the purposes of the Acts.

Key Point The WRC deals with complaints of discrimination, while claims of discrimination on the basis of gender may be brought before the Circuit Court. At the C, a preliminary application may be made in relation to whether the Acts apply in the particular circumstances. There may be a mista en belief that the Acts do not apply to persons, other than employees. However, the position is clear that the Acts apply to partners and to self-employed contractors who personally execute work or services. P


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Counting the Costs Eoin Sreenan BL looks at the cost consequences for failing to meet a court’s jurisdiction

S

ection 17 of the Courts of Justice Act 19 1 ( 19 1 Act ) imposes punitive costs conse uences on a plainti who obtains an rder that they could have secured in a court of a lower urisdiction. These costs conse uences are twofold - (a) the plainti may only be able to secure an rder that the defendant discharge the costs they would have incurred in that lower urisdiction and (b) the plainti may be ordered to discharge the additional costs that the defendant incurred by reason of the plainti commencing proceedings in a higher urisdiction than necessary. This article will consider the nuances of these punitive costs rules, including what exact type of rders can be imposed, when they can be sought and the nature of the discretion vested in the courts to determine which rders are appropriate in the circumstances.

Penalising a Plaintiff by Limiting Their Entitlement to Recover Costs Section 17, subsections (1) - ( A), of the 19 1 Act operate on the principle that a plainti who could have secured the rder that they ultimately obtained in a lower urisdiction should only be entitled to an rder for the 26 the Parchment

costs that they would have incurred, if they brought proceedings in that lower urisdiction. However, recognising that a single rule could result in unduly harsh conse uences for a plainti who, for example, narrowly misses out on securing an award within the High Court s urisdiction, these subsections create a general rule, but then allow for two exceptions. The general rule provides that a plainti can only recover the costs that they would be entitled to in the lowest urisdiction in which they could have obtained the rder that they ultimately secured. The first exception to this rule (see section 17(2)) operates by granting a High Court udge discretion to allow a plainti their full High Court costs if the plainti obtains an award between 64,000 and 75,000 and the High Court udge that heard the action grants a special certi cate stating the reason why it was reasonable in the interests of ustice generally, owing to the exceptional nature of the proceedings or any uestion of law contained therein, that the proceedings were commenced and determined in the High Court. The second exception to this rule (see section 17( )) states that if a plainti obtains an award for a sum between 15,000 and ,000 then they can only


Spring 2020 dsba.ie Eoin Sreenan BL is a practising barrister

recover costs e ual to the lesser of the following two (a) the amount of damages awarded or (b) the amount of costs that the plainti would have been entitled to if the action had been commenced and determined in the Circuit Court. Section 17( A) ad usts the monetary levels in each of these exceptions when the proceedings in uestion are see ing damages for personal in uries. ne area of uncertainty concerning section 17 was whether udges retained a discretion as to whether a plainti should be entitled to recover their full costs, even if they do not come within the monetary band set under section 17(2). Two Court of Appeal udgments delivered last year by Irvine . and Hogan . considered and brought clarity to this very issue. In the case of Savickis v Governor of Castlerea Prison & Ors. 2016 I CA 10 72 a detainee at Castlerea Prison claimed in the High Court that he was assaulted and in ured by prison officers after he refused to move out to the yard. n appeal, Hogan . and Irvine . agreed that the plainti was entitled to an award of 17,225, which in turn gave rise to separate submissions on the plainti s entitlement to costs. hen addressing section 17 Irvine . noted that its provisions limiting the successful party s entitlement to costs were directed at any proceedings where the relief granted in the rder could have been obtained in a lower urisdiction and made no account for the mode of trial chosen or favoured by the plainti . Irvine . conceded that this interpretation of section 17 may be viewed as restrictive, but that the section did not amount to an improper infringement of any right the plainti has to a ury trial in the High Court. In this regard the Court explained the policy usti cations underlying section 17, including the need for costs rders arising from proceedings to be governed by the principles of proportionality, certainty and predictability. Speci cally on the plainti s contention that a udge retains a discretion to depart from the strict rule limiting a party s entitlement to costs, Irvine . highlighted the express discretion granted in section 17(2) and how this was limited to cases where the successful party was close to securing an rder within the High Court s urisdiction. Hogan . s separate udgment agreed with Irvine . s interpretation of section 17 as not allowing the Court any discretion. hile the Court of Appeal s interpretation of section 17(1) - ( A) in this case may appear rigid, it re ects their recognition of the important policy considerations underpinning the provisions and their acceptance that, in the interest of securing implementation of the policy, certain un ust or unfair outcomes that may accompany the absence of udicial discretion have to be accepted.

Penalising a Plaintiff by Requiring them to Discharge Additional Costs that a Defendant Incurs Section 17(5) adopts the rationale that in some circumstances a defendant should not have to bear additional legal costs arising from the plainti s incorrect decision to commence proceedings in a higher, and more costly, urisdiction. In order to remedy the potential wrong that could arise, it allows a defendant to seek an Order against a successful plainti re uiring them to discharge the additional costs incurred by the defendant by reason of the plainti s decision.

Litigation

The amount of costs that a defendant is entitled to as that a plainti be re uired to discharge can be calculated in one of two ways - (a) the udge can measure the additional costs incurred or (b) the di erence between the amount actually taxed by the Taxing Master county registrar and the amount that they would have taxed had the proceedings been brought in the lowest urisdiction. ne issue that has received some recent udicial consideration is how a udge should exercise their discretion and what principles should guide them in determining whether, in all the circumstances, it is appropriate to grant a di erential costs rder. The Court of Appeal udgments in Moin v Sicika and O’Malley v McEvoy 201 I CA 240, concerned plainti s who issued proceedings in the High Court but obtained awards for damages that were within the Circuit Court s urisdiction. In the High Court the plainti s were awarded their costs on the Circuit Court scale, with a certi cate for Counsel. The defendants appealed see ing di erential costs rders, which they had not been granted in the High Court. hen considering a udge s discretion Peart . rst identi ed the legislative ob ective underpinning the subsection as establishing an incentive for plainti s to issue proceedings in the lowest urisdiction suitable for determining the claim and addressing the unfairness that would otherwise be visited on a defendant who would have to bear their own in ated costs. elying on this ob ective, Peart . stated that, once an award is signi cantly within the lower court s urisdiction, a udge should in e ect operate a presumption in favour of granting a costs di erential rder. However, apart from this presumption in favour of such rders when the award was well within the lower court s urisdiction, Peart . emphasised that the discretion granted was a broad one. ne consideration that weighed heavily in favour of granting costs di erential rders in these cases was that the defendants wrote to the plainti s a year or more prior to the hearings highlighting that the proceedings should be remitted to the Circuit Court and warning that the defendants would be see ing costs di erential rders. This, coupled with the Circuit Court having unlimited urisdiction in proceedings that are remitted, were critical factors for the Court nding that the plainti s had not discharged the onus on them to ensure that their proceedings were brought to hearing in the appropriate urisdiction. The Court of Appeal s udgment in Moin v Sicika and O’Malley v McEvoy was more recently applied, although on an obiter dicta basis, by Twomey . in O’Connell v Martin and Ali v Martin 2019 I HC 571.

One area of uncertainty concerning section 17 was whether judges retained a discretion as to whether a plainti should be entitled to recover their full costs, even if they do not come within the monetary band set under section 17(2)

Conclusion There is a strong policy rationale underpinning section 17 of the 19 1 Act. However, for the section to operate fairly plainti s and their advisers need to be able to ma e predictable assessments on the merit and value of a case. iven the evolving case law on how to uantify awards in personal in uries cases and the pressure on the legislature and udiciary to reduce the value of personal in uries awards, this is becoming an increasingly difficult tas . Therefore, section 17 and the case law considering how it operates is li ely to become increasingly important. P the Parchment 27


Family Values If your clients are planning to leave their house, savings or any other assets to their family inancial Adviser Ian eighery highlights the importance of solicitors ensuring the real value of these transferable assets are not reduced by CAT

I

t is worth mentioning that estate planning also extends to your clients’ pension position. Pension bene ts payable on death can di er greatly, depending on the type of pension a client holds. We will detail in this article some advantages that a Personal etirement Savings Account (P SA) pension contract holds over personal & company pensions in relation to estate planning.

Capital Acquisition Tax (CAT) CAT is the tax which is charged when you receive either a gift or an inheritance. CAT comprises two separate taxes: 1. Gift Tax payable on lifetime gifts 2. Inheritance Tax payable on inheritances received on death

hile there are a myriad of possible solutions, in this article wewill focus on the following: • Section 72 life assurance policy • Section 73 savings policy

Current Inheritance/Gift Tax Thresholds per Group:

This is a life assurance policy put in place by the individual(s) passing on their estate on death. The bene t of the policy is paid out on death and once the proceeds of the plan are used for the payment of inheritance tax by the bene ciaries, evenue will not see to tax the plan proceeds (sits outside of the estate). A plan e ected under Section 72 of the CAT Consolidation Act, 200 e ectively gives your client an option. Rather than letting tax legislation decide how their estate will be distributed, they can pass on their assets in the way they wish and plan for the tax consequences. One of the conditions of putting in place a S.72 policy is that the premiums must be paid by the life(s) assured. One method of sharing the cost of premiums is for the children, who will most li ely bene t from the proceeds, to help pay the premiums. They could gift their parents up to 250 monthly each (small gifts exemption) to help with the cost of maintaining the policy.

Group

Relationship to Disponer

Group Threshold from 09/10/2019

A

Son/Daughter

5,000

B

Parent/Brother/ Sister/Niece/ Nephew/Grandchild

2,500

C

Relationship other than Group A or B

16,250

This is the total threshold allowable within each Group includes all gifts and inheritances received since 5 12 1991) Than fully, at present there are several solutions available to aid potential CAT liabilities that can be put in place: 28 the Parchment

ife Assurance elief Section 72 Policy (formerly Section 60) Section 7 Savings Policy (gift tax savings policy) ife of Another ife Assurance Policy (cohabiting couples) amily Partnerships • Business Relief • Agricultural Relief avourite ephew elief

Section 72 Policy (S.72): Inheritance Tax Provision


Spring 2020 dsba.ie Ian Feighery is a Qualified Financial Advisor with Summit Life & Pensions Ltd

Any bene t amount from this type of policy not used to pay a CAT liability will be included in the estate of the deceased and possibly subject to CAT.

Section 73 policy (S.73): Gift Tax Provision: This is a savings plan which receives relief under S.73 of the CAT Consolidation Act, 200 . This allows people to plan for the payment of gift tax in a tax efficient way. If a life assurance savings plan is put in place to provide for the relevant tax, evenue will not charge CAT on the plan proceeds, provided the money is used to pay gift tax.The bene t of using a ualifying life assurance savings plan to fund the payment of gift tax is that the proceeds, when used to pay an individual(s) bene ciaries gift tax bill, will not increase their gift tax liability. hereas, if the individual gives their bene ciaries additional money to pay the gift tax bill from their deposit account, this will be treated as another gift, and will increase the bene ciaries tax bill.

Conditions to be Met to Qualify • Policy must be written/endorsed as a S.73 policy from inception • The person giving the gift must pay the premiums • The premiums must be paid for eight years minimum Another advantage of a S.73 policy is that the owner of the policy does NOT have to gift the proceeds if they do not need want to. Therefore, they control the policy at all times. Writing it as a S.73 policy provides this option in the future.

Personal Retirement Savings Account (PRSA) PRSAs were introduced to the pensions industry back in 2002 to help increase private pension participation. They are a exible pension contract which have the same funding rules as a personal pension (age earnings related). However, the main advantages that P SAs have over both personal and company pensions for estate planning are as follows: • They allow individuals the option to delay maturing the policy altogether until age 75 the max age for the other two contracts is age 70 • PRSAs will pay out the full value of the pension fund on death to the deceased’s estate. Company pensions will only pay out a maximum lump sum of 4 times current salary of their occupation plus any personal contributions to the pension on death. Any amount

Estate Planning

above this gure would be used to buy an annuity for the surviving spouse (potentially not as advantageous as the P SA) • PRSAs can have the option for multiple maturities. A PRSA policy can be split numerous times and individually matured. Any portion of the original PRSA that is not matured will be paid out as a lump on death before age 75. Company and personal pension policies can only be matured once • PRSAs can help manage imputed distribution (pension income) re uirements for an Approved etirement und (A ). An A is a post retirement bond from which income is taken in a similar manner to an annuity. The imputed distribution level for an A over 2m is 6 per annum. The level for an A under 2m is 4 per annum until age 71, at which point this increases to 5 per annum. Therefore, it is possible to eep the A value under the €2m threshold up until age 75 at which point the P SA would have to become an A At present, the current maximum tax efficient pension(s) that can be funded is 2m. Any amount above this threshold will incur an overfunding tax liability of approx. 70 . As P SAs can be spilt numerous times, the individual can mature up to 2m of their PRSA and defer payment of this overfunding liability. As previously outlined, this is a ma or advantage PRSAs hold over personal and company pensions, as these plans are re uired to be fully matured in one go. Also, if the P SA holder passes away before the policy has been matured (before age 75), the full amount even if above the 2m threshold would be paid out to the estate as a lump sum. As the policy is not considered to have been matured, there is no overfunding tax liability.

With the price of property increasing sharply over the past few years, more individuals will nd themselves with a CAT liability due to the low inheritance tax threshold levels

Conclusion As outlined in this article, there are various methods in which you can help protect clients against potential CAT liabilities when transferring assets. While we have provided some detail on two of them, there are other ways which also need exploring. With the price of property increasing sharply over the past few years, more individuals will nd themselves with a CAT liability due to the low inheritance tax threshold levels. This will result in a large chunk of inherited assets being lost to tax with the currentrate of CAT at . Things we should all be aware of • There is potentially a CAT liability in the future for many families and • There are solutions available once plans are put in place in time. In addition to the methods outlined to help individuals protect themselves against CAT liabilities, we also touched upon pensions in relation to estate planning. As mentioned previously, P SAs potentially hold many advantages over company and personal pensions that are worth further investigation, especially in cases where an individual holds over €2m in their pension(s). Proper estate planning will help to identify any of these issues early on, which in turn should allow ample time to come up with the best and most suitable solution(s). i e everything in life, personal circumstances change rapidly along with legislation so it is vitally important to review regularly. P the Parchment 29


Gearóid Carey is a senior associate at Mason Hayes and Curran

Litigation

Blaspheme no More! ear id Carey considers some changes introduced by the Blasphemy (Abolition of ences and elated Matters) Act 2019 and loo s at the bac ground to that legislation

With blasphemy having been removed from the Constitution, the legislature was free to give e ect to this through conse uent legislative revisions

30 the Parchment

T

he Blasphemy (Abolition of ences and elated Matters) Act 2019 was passed by both Houses of the ireachtas before Christmas, was signed by the President on 21 December 2019 and commenced by the Minister for ustice and uality, Charlie lanagan, on 17 anuary 2020. The Act gives e ect to the change brought about by the Constitutional referendum on blasphemy in ctober 201 .

Background Arising from the passing of the thirty seventh amendment to the Constitution, the original text of Article 40.6.1 of that document provided that t he publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law was replaced with alternative text which simply removed the word blasphemous . The revision to the Constitution addressed the curious scenario whereby the Supreme Court had, in Corway v Independent ewspapers 1999 I SC 5 where it declined to sanction private prosecutions already said it was difficult to see how the common law crime of blasphemous libel could have survived the enactment of the Constitution. The Supreme Court further observed that, without legislative de nition, it was impossible to say what the o ence of blasphemy involved. As a sop to the express wording of the Constitution, the legislature ultimately sought to address this through Section 6 of the Defamation Act 2009. However, even by that stage, blasphemy as a modern concept was widely recognised as redundant. The aw eform Commission s 1991 report considered that there was no place for blasphemy in a society where free speech was respected and that other, more modern statutory protections against outrages of religious belief existed (citing, in particular, the Prohibition of Incitement to Hatred Act 19 9). The 1996 report of the ireachtas Constitution eview roup also felt that a constitutional prohibition on blasphemy was not appropriate. However, notwithstanding resistance as part of the Dáil Debates on the Defamation Bill,

what became Section 6 was usti ed on the basis that it was mandated by Article 40.6.1 of the Constitution, which there was little appetite to amend. However, the Constitutional Convention, established in December 2012, did address the issue and its members voted that blasphemy should be removed from the Constitution and from legislation. ltimately, the relevant amendment was put to the people in ctober 201 on the same date as the Presidential election.

The New Act With blasphemy having been removed from the Constitution, the legislature was free to give e ect to this through conse uent legislative revisions. The subse uent Blasphemy (Abolition of ences and elated Matters) Bill 2019 proposed revisions not only to the Defamation Act 2009 through the repeal of Sections 6 and 7, but it also amended provisions of legislation relating to the censorship of lms by deleting blasphemous as a criterion (which prevented the original release in Ireland of Monty Python s Life of Brian). inally, the Bill also proposed explicitly to abolish the common law o ences of blasphemy or blasphemous libel. Somewhat unusually, and a measure of the consensus behind it, the Bill proceeded swiftly through the Houses of the ireachtas unamended. In commencing the Act, Minister lanagan welcomed its passage and enactment and referred to the clear-cut nature of the referendum result. otwithstanding that it was a short and technical piece of legislation (albeit with a somewhat colourful bac ground), he stressed the importance of freedom of expression, whilst at the same time noting it was not to be construed as an attac on religious belief “Ireland is a country of increasing diversity. The right to express differing viewpoints in a forthright and critical manner is a right to be cherished and upheld The new Act is a simple acknowledgement that the meaning of the concept of blasphemy is unclear in a modern State, and that the concept is rooted in a distant past where fealty to the State was con ated with fealty to a particular religion.” P


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Two Female Parents are Forced to Lie Maeve Delargy highlights an anomaly in the law that could give BT parents a ten-year prison penalty

I

f you have recently been on holidays with a new baby, you’ll have been through the exciting milestone of applying for your child s rst passport. Unfortunately, this milestone, if it comes, could be rather less joyful for me. Not because I’m not Irish, not because my partner isn’t Irish, but because she, as the other parent of this would-be child, is also a woman. In Ireland, unless the two people who have a child are male and female they are not, under Irish law, recognised as the parents of that child. Whether the two people are in a relationship is irrelevant. Similarly, both people in an opposite-sex couple using donor sperm will still likely be named as the parents of the child on the Birth oti cation orm and ultimately on the child s birth certi cate. This is not true for same-sex couples, also having used donor sperm, where only one of that couple will be named as a parent on the Birth oti cation orm and on the child s birth certi cate. This poses particular problems for a same-sex couple who wish to apply for a passport for their child. Despite the fact that two people eagerly awaited this child’s birth and are now, perhaps less eagerly, changing their nappies, the birth certi cate of this child will only have one name on it, that of the birth mother. Where a person is the sole legal guardian of a child, in order for a passport to be granted for that child, an affidavit must be submitted to the e ect that there is no other guardian or parent who should be consenting to the making of the passport application. Because the

32 the Parchment

birth certi cate of the child of a same-sex couple has only one name on it,this person will have to swear such an affidavit ( orm A 1) if the passport is to issue. In the event of my being the birth mother of a child planned with my wife-to-be, I would have to swear that affidavit, even in circumstances where my wife would likely be at home parenting our child. anae on Meding, BT parental rights activist and creator of this petition, describes going through this process for her and her wife s baby Arya on her blog “I had to go to our solicitor during the week where I was forced to sign an affidavit stating that I was the sole parent and only adult responsible for our baby Arya. Which is a IE. Arya has two parents – though only one of them is legally recognised”. The Passport Service, in its cover letter attaching orm A 1, uotes section 20(1) of the Passports Act 200 , which states that a person who provides false information in connection with a passport application is guilty of an o ence. So, not only would I be forced to legally swear that my wife is not the other parent of our child, I would be guilty of an o ence for doing so, the penalty for which may be up to 10 years imprisonment. Legislation has been enacted to rectify this for certain lesbian couples by allowing both parents to be named on the birth cert. Unfortunately, the relevant sections of this legislation have not yet been commenced. The sections in uestion, Parts 2, and 9 of the Child and amily elationships Act 2015 (C A), have been awaiting commencement for over four years and no less than seven promised deadlines


Spring 2020 dsba.ie Maeve Delargy, writing on behalf of the OUTLaw Network, is an associate at Arthur Cox

for commencement have already been missed. ot only are these sections apparently difficult to commence ( ) they are also very difficult to understand. To that end, the T aw etwor , in con unction with BT Ireland and the esbian awyers etwor , held a ainbow amilies event, indly hosted by A oodbody, in une 2019 to try to explain this legislation. The summary of this event on the T aw website discusses the enactment of the Civil egistration Act 2019. That Act nally gave the BT parents to whom it applied some comfort in that it amended the C A to provide that Part 9 commenced by 5th ctober 2019. Part 9, providing for the creation of a donor register, was considered the roadblock holding up the commencement of Parts 2 and . It was hoped that the deadline of 5th ctober for the commencement of Part 9 would result in Parts 2 and also being commenced at that point. However, to the frustration, anger and disappointment of BT families the Department of Health then announced its intention to wait until 5th May 2020 before commencing Parts 2 and of the C A, the commencement order for which was recently signed by Minister Harris. Essentially this means that same sex families are still une ual in the eyes of the law. Despite our clear cultural shift, evident from the result of the marriage referendum in 2015, the law has still not caught up. Children born to same sex couples still do not have e ual rights. They do not have automatic inheritance rights from both their parents. Unlike stepchild

to stepparent relationships, the inheritance from their non-biological parent would be treated, for tax purposes, as third party inheritance unless their parents are married. They are not legally considered to be related to the relatives of their non-biological parents and any inheritance from those grandparents, uncles or aunts would be considered third party inheritance for tax purposes. hile Parts 2 and of the C A relate to all donorassisted conceptions, the fact that these parts have not been commenced only impacts BT couples. The advice provided on Citizen’s Information in relation to registering the birth of your child is “If the parents are in a recognised marriage only one parent need attend, however, if both wish to sign the register they should both attend.” This is because a child of parents who are married to each other is presumed in law to be the child of those parents. Despite having marriage e uality in Ireland, this provision does not apply to a married couple where both spouses are of the same sex. Therefore, unlike a mother who is married to a man, a mother who is married to a woman is not able to go to the egistry ffice with her marriage certi cate and as that her spouse’s name be put on the birth cert. i e the marriage e uality referendum, commencing parts 2 and of the C A will not solve all the issues for BT families. Surrogacy, for example, is not covered under the C A and will re uire the enactment of the Assisted Human eproduction Bill 2017. Therefore, while commencing these sections is not the answer to everything, it would be a good start. P

Equality Law

Despite having marriage e uality in Ireland, this provision does not apply to a married couple where both spouses are of the same sex

the Parchment 33


Share Purchase Agreement Drafting - Main Takeaways from the 2010s The 2010s saw some seismic shifts in Ireland’s regulatory landscape. Conall eraghty re ects on a decade of change and its e ect on the drafting of share purchase agreements

T

he Companies Act 2014, the General Data Protection egulation ( DP ), the ourth Anti-Money aundering Directive, the associated public egister of Bene cial wnership, AMA and the and and Conveyancing aw eform Act 2009. In the roughly 10 years since the DSBA launched the previous edition of its new specimen Share Purchase Agreement (SPA), the legal and regulatory landscape has changed utterly. This article highlights just a few of the more notable changes from the 2010s and their impact on drafting an SPA.

Single Director Sealing The and and Conveyancing aw eform Act 2009 brought welcome updates to Irish property law but, for commercial lawyers, it also brought changes to the rules for executing deeds. In the case of individuals, the requirement for “sealing” of deeds was abolished so practitioners should take care to delete any references to deeds being sealed by individuals. or companies, under the former Table A of the Companies Act 196 , the use of the common seal of a company required the countersignature of two persons commonly two directors or a director and the company secretary. However, there is now a widespread acceptance that the Companies Act 2014 may permit the common seal to be affixed with the countersignature of a single person if, and only if, this is expressly permitted by the constitution of the company as a variation of Section 4 (2) of the Companies Act 2014. or example, a constitution may include a regulation that:“The company’s seal shall be used only by the authority of its directors, or of a committee of its directors authorised by its directors in that behalf. Any instrument to which the company’s 34 the Parchment

seal shall be affixed shall be signed by a director of it or by some other person appointed for the purpose by its directors or by a foregoing committee of them. The signature of a second person is not required.”

New Requisitions on Title The Conveyancing Committee of the aw Society of Ireland continued to update and improve its standard set of objections and requisitions on title, with a new edition published in 2019. In light of this update, the DSBA Commercial aw committee recommends that the warranty 26.25 of the DSBA Specimen SPA is amended by ma ing an e uivalent reference update “2 .25. There is no threatened or outstanding notice, order or certificate under any of the statutes listed in re uisition 12 of 2019 edition of the Law Society of Ireland’s Objections and e uisitions on Title .”

Register of Beneficial Ownership The ourth Anti-Money aundering Directive (4M D) introduced the requirement for all companies to hold adequate, accurate and current information on their bene cial owners. All companies must now (1) maintain an internal register on their bene cial owners and (2) le details of that information on the central egister of Bene cial wnership ( B ) at www.rbo.gov.ie. It has come to the attention of the DSBA Commercial aw committee that an individual cannot simply be removed as a bene cial owner unless that person s registration details are provided. Accordingly, the DSBA Commercial aw committee recommends that the completion deliverable in clause 6.2.16 of the DSBA Specimen SPA is amended by the addition of the underlined text: “ .2.1 copies of a notice from each beneficial owner of any


Spring 2020 dsba.ie Conall Geraghty is a senior associate on the Corporate team at Mason Hayes & Curran and a member of the DSBA Commercial Law committee

Commercial Law

Your client’s accountants should con rm the precise description of any nancial statements which are to be referred to in the warranty schedule

relevant change within the meaning of the European nion (Anti- oney aundering eneficial wnership of Corporate Entities) egulations 2 1 (S.I. o. 5 of 2 1 ), including their name, address, date of birth, nationality, personal public services number ( S ) or number (as the case may be) ” urther reforms are due under the ifth Anti-Money aundering Directive (5M D). However, Ireland has not yet transposed 5M D into domestic law even though the deadline for transposition was 20 January 2020.

Legal and Accounting Terminology The most signi cant change in the area of company law was the commencement of the Companies Act 2014 on 1 une 2015, replacing the Companies Act 196 and consolidating over 50 years of company law. Beyond obvious updates to statutory references, this new Act brought with it some less obvious changes in terminology: Companies Act 196 term

Accounts

Companies Act 2014 term

inancial Statements

Auditor

Statutory Auditor

Proper books of account

Adequate accounting records

After many years of development, the inancial eporting Council published its new single nancial

reporting standard S 102 for accounting periods beginning on or after 1 anuary 2015. The new nancial reporting standard brought new accounting terminology: “Old” Irish and UK GAAP term

S 102 term

Balance Sheet

Statement of inancial Position

Pro t and oss Account

Income Statement

Minority Interest

on-controlling interest

However, as the old Irish and K AAP terms are retained in certain sections of the Companies Act 2014, practitioners should pay careful attention to the correct term to use in the particular context. Your client’s accountants should con rm the precise description of any nancial statements which are to be referred to in the warranty schedule.

DSBA Specimen SPA 2019 The DSBA Specimen Share Purchase Agreement 2019 (including Specimen Tax Deed Specimen Disclosure etter) is now available for purchase to members of the DSBA at 275 plus AT ( .25). Please contact Maura Smith at maura dsba.ie or 01 670 60 9. P the Parchment 35


Property VAT Update Despite the simpli cation measures introduced bac in 200 VAT on property remains one of the most complex areas of taxation in the State. Bruce Stanley warns that it can also prove one of the most costly if it is not dealt with correctly

A

comprehensive review of VAT on property is beyond the scope of this article, the purpose is rather to provide a few key topical matters that we have seen arise in practice recently.

Old/New Property and Development/ Refurbishment Determining whether a property is old or new is often the rst step in ascertaining if it should be sub ect to VAT. Property is often referred to as “old” or “new”. This does not necessarily relate to the age of a property as a property could be six years old and considered “old” for VAT purposes but a 100 year old property could be considered “new” for VAT purposes where it has been signi cantly developed in the ve years immediately prior to its sale. Property is generally considered new when it is: The rst supply of a completed property within ve years of its completion is sub ect to AT ( nown as the ve-year rule). • The second and subsequent supply of a completed property within ve years of its completion is sub ect to AT if it has not been occupied for 24 months in aggregate ( nown as the two-year rule). • Any supply of a developed, but incomplete, property within 20 years of when the development ceased ( nown as the 20-year rule). “New” property is automatically sub ect to AT (currently at a rate of 1 .5 ) on sale. “Old” property is generally VAT exempt, but in certain scenarios, the vendor and purchaser may ointly opt to tax the sale. This is usually done to protect a clawback of any VAT recovered by the vendor on acquisition and/or development of the property in the 20 years prior to the sale. Caution should be taken as other factors could deem property which appears to be “old” to be VATable. For

36 the Parchment

example, a sale, in connection with a contract between the purchaser and another person to develop the property should be sub ect to AT. Another common exception is the sale of residential properties by a developer or builder. In this case the two, ve and 20-year rules don t apply.

TOB Updates evenue updated its published, non-statutory, Transfer of Business ( T B ) guidance both in uly 201 and December 2019. T B relief no longer applies to the sale of previously let property (the property must either be let or sub ect to a lease agreement at the time of sale) and the relief should not apply where the sale is to an existing tenant. The December 2019 updates re ect changes made under inance Act 2019. Previously, AT recovery was not available for the vendor where the sale, but for the application of TOB relief, would have been VAT exempt. However, with e ect from 22 December 2019, the VAT recoverability on sales related costs for either party should be determined based on general overhead VAT recovery entitlements.

CGS Implications - Connected Party Transfers and Tenants Refurbishment nder the Capital oods Scheme ( C S ), property has a 20 year AT life. rdinarily, where a capital good remains in a property and the property is disposed of, a clawback of the VAT reaming should arise for the vendor (unless T B relief applies to the sale or both parties elect to ointly opt to tax the sale). Where the sale of property between connected persons is automatically sub ect to AT (or would but, for example, T B relief applies), a clawbac of VAT could arise where the amount of VAT which would have been chargeable on the sale is less than the VAT remaining in the capital good of the property.


Spring 2020 dsba.ie

Taxation/Property

Bruce Stanley is the tax partner with HLB Sheehan Quinn

The clawback amount equates to the amount of VAT remaining in the capital good, less amount of VAT which would have been chargeable on the sale. Alternatively, a clawback can be avoided where both parties agree in writing that the purchaser will “step into the shoes” of the vendor for CGS purposes. Refurbishment works carried on by a tenant post 1 uly 200 are sub ect to C S rules and a 10 year capital goods life applies. If during this 10 year period the tenant ceases to occupy the property, a AT ad ustment should be required by the tenant. In certain instances, provided the tenant has full VAT recovery entitlement and it is agreed with the landlord, in writing, the landlord could “step into the shoes” of the tenant and acquire the capital good remaining in the property.

Airbnb Lettings

Waivers of Exemption

Companies closely bound by nancial, economic and organisational links may form a VAT group, allowing its members e ectively to be treated as one. ithin a AT group, intra-group transactions are e ectively ignored for AT purposes. However, where immovable property is transferred between VAT group members, such transfers do not bene t from AT grouping provisions, and general VAT rules should be applied as if the transfer was between independent parties. Lettings between VAT group members may be disregarded for VAT purposes.

Prior to 1 uly 201 , it was possible for a landlord to waive its entitlement to treat short-term lettings (i.e. a lease for a period of less than 10 years) as being AT exempt. Although, it is no longer possible to get a new a waiver of exemption some legacy issue remain. Where a waiver of exemption applied to a commercial letting pre 1 uly 200 (or residential leases pre 2 April 2007), the landlord was allowed to eep this waiver, and continue to charge VAT on the lettings (provided the letting was not between connected parties). As such, it is possible that some pre 1 uly 200 lettings of residential property may be sub ect to AT even though residential leases are now VAT exempt. A waiver of exemption currently held by a landlord can be cancelled in one of two ways: 1. The landlord noti es evenue in writing of its intention to cancel; or 11. The last property sub ect to the waiver is sold. Where a waiver is cancelled, the landlord should remit to Revenue any excess of VAT recovered over AT paid in respect of the rentals (calculated sub ect to certain evenue concessions).

The letting of a room in a hotel or guesthouse or, all or part of residential accommodation that is let on a short term basis (i.e. for a period which does not exceed or is unlikely to exceed eight consecutive wee s) for guest accommodation to a tourist, holiday ma er or other visitor, is sub ect to AT at a rate of 1 .5 . This applies even where rooms in a family home are let via Airbnb. As such, where turnover from such supplies exceeds or is li ely to exceed 7,500 in a 12 month consecutive period, VAT should be charged. Those with Airbnb accommodation should monitor their turnover to ensure VAT is applied correctly.

VAT Groups

A clawback can be avoided where both parties agree in writing that the purchaser will “step into the shoes” of the vendor for CGS purposes

Conclusion VAT on property continues to evolve and remains an area of complexity. The complications can further increase where a full VAT history is not available or forthcoming. This article is intended to provide a high level overview of some key considerations, but there are often exceptions to the general rules which can impact the AT treatment that may at rst appear blac and white. the Parchment 37


“Without Prejudice” - The Principles

and the Myths

Bill Holohan aims to clarify the meaning and e ect of the term “without prejudice”, when it should be used, and the circumstances in which the protection it gives will and will not apply

I

t may be a sign that I am getting old and grumpy, but I nd myself becoming more and more irritated by what I would describe as my fellow solicitors’ slapdash /indiscriminate approach to the use of a without prejudice heading in correspondence (that practice, and them threatening to revert to me, being on a par in my view). Not surprisingly, disputing parties tend to put their best foot forward when asserting a claim and look for the best outcome they could possibly achieve. They therefore do not to want to make, or to be seen to make, too many concessions in open correspondence in case the other side later try to take advantage of this in court. Nevertheless, it is usually the case that parties are realistic and are prepared to settle for less than they would otherwise seek if forced to pursue matters all the way through the court or other formal means such as arbitration. They may recognise that there may be some weakness in their own case or they may have pressing commercial needs leading them to look for an early resolution of the dispute whether that be through litigation, alternative dispute resolution (AD ), mediation, face-to-face or assisted settlement. Whatever the reasons, parties may be prepared to ma e allowances or concessions in an o er. There are many situations that arise in relation to this practice, as worldwide, on a daily basis, there are millions of communications, correspondences or negotiations between parties, including lawyers, some of these being “open” and some being “without pre udice . Some are a mixture of both. Such exchanges are part and parcel of the process of ma ing and resolving claims and communications between

38 the Parchment

parties to disputes. Increasingly, this also includes admissions and/or apologies made in the course of mediations. Parties or their lawyers therefore attempt to make use of the privilege attaching to “without prejudice” communications. However, it is commonly misused and after almost 40 years in practice it seems to me to be ever more commonly misused. It also seems to engender a certain degree of mysti ue and confusion.

The Purpose of Giving Privilege to Without Prejudice Communications Without prejudice privilege can assist with a negotiation process and, if used correctly, can allow parties to communicate freely without fear of the potential impact on their case if no settlement is reached. The communication (whether written or oral) must be made in the context of a view to genuine settlement negotiations in order for it to be without pre udice . Simply labelling a communication without pre udice will not suffice. The surrounding circumstances must be loo ed at to decide whether the protection should apply. “Without prejudice is not a label which can be used indiscriminately so as to immunise an act from its normal legal consequences where there is no genuine dispute or negotiation” ( nilever Plc -v- Proctor amble Co 2001 1 All 7 .). ven if communications are not expressly labelled “without prejudice” the protection will not be lost, provided the negotiations are genuinely aimed at settlement. or example, pre-action letters sent by a defendant’s insurers have been deemed to form part of compromise negotiations and therefore protected even though they were not headed “without


Spring 2020 dsba.ie Bill Holohan is principal of Holohan Law, Cork. He is a council member of the Law Society

pre udice (Belt -v- Basildon Thurroc HS Trust 2004 HC 7 ( B). However, it is advisable to preface relevant correspondence or communications with the expression, where appropriate.

What About a Chain of Correspondence Some of Which is Labelled and Some of Which is not? This approach also extends to cases involving a chain of communication. hat if the words without prejudice” are used initially by the parties but they fail to repeat them in subse uent exchanges here the protection is deemed to apply to the rst exchange of communication, all subsequent communications will be covered, provided that they form part of the same set of genuine negotiations.( Cheddar alley ngineering td -v- Chaddlewood Homes 1992 1 20.). However, if there is evidence that the chain of communication has been broken such that the following communications are clearly intended to be on an open basis, (the opposite of without pre udice), then the protection will fall away from that point. urthermore, without pre udice protection is generally accepted to extend to any dispute whether it be the subject of litigation, arbitration, tribunal proceedings or alternative dispute resolution (AD ). That said, on an almost daily basis, I receive correspondence, which is relatively routine in nature, and which on any objective analysis is in fact an “open” letter, but which the correspondent chooses to label and “cloak” with what they see as the magic words ithout Pre udice , (no doubt ust in case ). However, on any ob ective review, the correspondence in fact does not in any way seek to ma e an admission, (without pre udice), or concession (without pre udice) or ma e an o er (without pre udice) with a view to opening negotiations or by way of o er to compromise legal proceedings or a dispute. Conse uently, they ma e an entirely inappropriate use of the ithout Pre udice heading. If I am suitably tetchy, I sometimes nd myself sending an email lecture to the correspondent. If for no other reason than to save myself having to repeat that exercise on an ever more fre uent basis, I am hoping that this article will clarify the appropriate use of a without pre udice heading, for the bene t of all.

Litigation

Conse uently, I am going to attempt to set out the principles (and dispel some myths) regarding the concept of “without prejudice” communications and look at some of the practical and procedural problems and difficulties of dealing with this sub ect in courts and arbitrations, particularly in connection with disclosure and admissibility.

The Meaning of “Without Prejudice” “Without prejudice” means “without prejudice to the ma er of the statement . In most, if not all, common law countries, what this means is that negotiations by parties to a dispute and letters, emails or other communications sent from one to the other for the purpose of those negotiations, which are labelled “without prejudice”, are treated as being privileged, and conse uently inadmissible as evidence. They cannot be disclosed. They should not even be made known to, and certainly not considered, by the judge or arbitrator deciding the factual issues. They can be disclosed during the proceedings only if both parties consent to their disclosure and are admissible either when there is a waiver by the maker of the statement or if the communication falls into the several categories of exceptions.

How to Communicate Effectively in Settlement Negotiations:

What Does it Mean? The important message is that the words without prejudice” on correspondence do not, in themselves, o er any protection per se, and do not prevent the correspondence from being regarded as open correspondence, on the record. i ewise, the simple absence of those “magic” words do not automatically convert truly “without prejudice“ correspondence into open letters, i.e. letters which are on the record. abelling a angaroo as an elephant does not ma e it an elephant and labelling open correspondence as without pre udice does not ma e it without pre udice. There is certainly no magic protection when one uses these words. As with many things in life, it is the substance, not the label, that matters.

Without Prejudice is commonly misused and, after almost 40 years in practice, it seems to me to be ever more commonly misused

• • •

To ualify for without pre udice privilege, the communications must convey a genuine attempt to settle the dispute, or some aspect of it. Parties can only waive privilege if they both agree. Communications before and after the issue of court proceedings may be privileged. Try to separate open correspondence (where possible settlement issues are not dealt with) from without pre udice communications (where they are). If they are mixed, it can often prove to be a problem e.g. if court proceedings are issued later and you want to rely on that document, or if the settlement negotiations are accidentally brought to the court s attention. Oral as well as written communications can be privileged. It is therefore sensible to eep detailed contemporaneous notes of any telephone calls or meetings in which settlement issues are discussed. Communications do not necessarily need to be identi ed at the time as without pre udice in order to qualify for the privilege but it is sensible to ma e the intended status clear. You should state when you intend to talk on a “without prejudice” basis, and when you wish to return to spea ing openly. You may want to follow up any oral communications with a written con rmation. It is advisable that all correspondence involving settlement issues be marked “without prejudice” at the top. iven that the Courts will now loo at the parties e orts to engage in mediation or settlement tal s, correspondence regarding arrangements to meet, a distinct from correspondence regarding o ers, will be regarded as open correspondence. P the Parchment 39


Susan Martin is principal of Martin Solicitors. She is a Council Member of the DSBA

Divorce and Judicial Separation Proceedings in the Circuit Court – A Guide to Order 59 by Keith Walsh, Bloomsbury Professional, 2019

Susan Martin reviews this new family law book which will provide a great source of information and assistance to practitioners

N

early 20 years ago, the rules of procedure on the Circuit Court on all aspects of law took up barely 200 pages. Life and law have become more complex since then. In 2017, Order 59 of the Circuit Court Rules consolidated and updated the piecemeal changes made in the rules of procedure since 2001. The changes in procedure, especially with regard to matrimonial matters, can be a mine eld for practitioners. We are now in a new world where the conduct of matrimonial proceedings is concerned. Keith’s book provides an excellent guide to the rules of procedure for matrimonial cases. It is a handy reference book in that the entire text of Order 59 is set out in full. Along the way the rules and sub-rules are annotated with cross references and an explanation for the reason for the rule is provided. I cannot think of another book which provides the rationale for the rules and this is to be very much welcomed. The Dublin County Registrar said at the launch of this book that Keith was ideally placed to write it he is a former chair of the DSBA amily aw Committee, former chair of the aw Society s amily Law Committee and a member of the Circuit Court Rules Committee. The book is full of helpful hints and tips which give the practitioner a practical way of progressing their case. An example would be in the description of the new Case Progression Procedure in the Dublin Circuit pursuant to Order 59 Rule 65. If a practitioner had

40 the Parchment

never triggered the Case Progression Procedure previously, they could, by following the steps set out in the boo gure it out uic ly. This is what every practitioner is looking for in a reference book! It is worth uoting from the notes on rder 59 Rule 65 to illustrate this point:

“Tips: • It is always a good idea to check and double check whether the notice to trustees has been served and the affidavit of service filed in the Circuit amily Court office at each step of the way as this is often overlooked. The case progression hearing should never be the first time that vouching is discussed between solicitors. Communication between solicitors for the parties should take place well in advance to ensure issues can be dealt with and in the absence of agreement put to the County egistrar for resolution.” Keith is extremely generous with his knowledge throughout and the practitioner gains not only in terms of understanding the procedure but having the “insider” knowledge which improves their own handling of the case. The author has very well illuminated Order 59 and has great commitment to improving the practice of family law. His book is written in an enviably simple way and brings to mind that well known footballing poet Eric Cantona: “It is en oyable to make things visible which are invisible”. I would regard this book as essential reading for anyone with a matrimonial case in the Circuit Court.


Spring 2020 dsba.ie

Book Review

Photography: Paul Sherwood

Minister Josepha Madigan and Author Keith Walsh

President of the Law Society Michele O’Boyle with Michelle Ní Longáin and Brendan Dillon at the Book Launch

Keith Launches New Family Law Book

C Susan Martin and DSBA President Tony O’Sullivan

Dublin County Registrar Rita Considine (Right) with Maura Derivan

olleagues from across the city gathered at the Law Society in late January to celebrate the launch of Keith Walsh’s new family law book. Entitled: Divorce and Judicial Separation roceedings in the Circuit Court – A Guide to Order 59, the book was formally launched by Minister Josepha Madigan, herself a former family law solicitor. Guest speaker at the launch was Dublin County Registrar Rita Considine, who welcomed the book’s arrival and commended Keith Walsh for his work in publishing it. Keith is principal of Keith Walsh Solicitors and he is former chair of the aw Society amily Law Committee. He is former President of the DSBA and former editor of the archment. Also in attendance on the night was DSBA President, Tony O’Sullivan and members of the DSBA Council as well as Law Society President, Michele Boyle. The boo is published by Bloomsbury Professional and is widely available. P

Author, Keith Walsh

the Parchment 41


Probate

Verifying the Family Tree! An Irish probate genealogy rm has called on solicitors administering estates to verify family trees before completing their investigations

The Ireland of the 19 0s and 40s di ers vastly from the Ireland of today, and there were a variety of circumstances that would have led to half, and sometimes full, siblings being un nown to their immediate birth family

T

he old ussian proverb Doveryai, no proveryai originated sometime in the late 19th or early 20th century, and translated to nglish simply means trust, but verify . The phrase was coined by former S President onald eagan in the mid to late 19 0s, who used the term when discussing S and ussian relations during that time. At the signing of the I Treaty in 19 7, eagan again used the phrase, much to the annoyance of his ussian counterpart Mi hail orbachev, who responded ou repeat that at every meeting . eagan replied I li e it . Hilary Clinton, Barac bama, and Colin Powell have all used the nglish-translated phrase on multiple occasions, high-lighting the importance of a solid veri cation process as the foundation for trust. Padraic rennan, Managing Director of rin esearch, meets with hundreds of probate practitioners every year and conducts the survey at each meeting. ur results show that in the vast ma ority of probaterelated cases, solicitors tend to rely on family testimony alone as a method for distribution of funds, he said. very time I meet with a solicitor I as whether they have ever veri ed their family trees. The answer is almost always no . hen we highlight the potential pitfalls of failing to verify a client s testimony, the general reaction is one of shoc and genuine surprise. rennan advises and encourages the professional veri cation of a family tree as of the utmost importance as part of the distribution process.

Ireland of the Past The Ireland of the 19 0s and 40s di ers vastly from the Ireland of today, and there were a variety of circumstances that would have led to half, and sometimes full, siblings being un nown to their immediate birth family. or example, legal adoption, where adoptions were recorded as we now them today, only came into force in 1952. Many of the pre- 52 adoptees remain living today, and would be entitled bene ciaries of their birth families estates. e recommend to probate practitioners to verify even the closest of family trees. In some cases, we nd entitled bene ciaries that were previously un nown and in the process, siblings can become aware of a half or sometimes full sibling they never new existed, says rennan.

Complicated Cases Intestate or partially intestate cases involving wider in will result in larger family trees and a re uirement for more intensive research. In many cases, full maternal 42 the Parchment

and paternal extensions of the family tree will be re uired, with each branch re uired to be descended until entitled bene ciaries are identi ed. It is cases of this nature that lawyers and personal representatives should be most wary. e have seen cases where there may be up to 20 persons on the top line of a family tree, which when descended can mean a signi cantly large number of entitled relatives to be identi ed and located. In the vast ma ority of cases, the details provided to the lawyer at the outset may loo comprehensive, but when we delve in, the gaps usually begin to appear .

Testimony hen ta ing instruction from a client, rennan advises lawyers to proceed with caution as no matter how plausible their testimony, there is a high ris of misinformation being communicated. In most situations, clients will not be familiar with intestacy law or understand how the distribution of an intestate estate should wor . This can lead to them sometimes un nowingly misinforming their legal representative. rennan highlights one particular case where a solicitor re uested the veri cation of a family tree on behalf of his client. Convinced he was the only surviving next-of- in as a rst cousin of the deceased, the client was shoc ed to learn that there were other surviving entitled in on both the maternal and paternal sides of the family, some of whom he never even new existed. This can be commonplace, so best practice is always to chec it out and get the family tree veri ed, says rennan. This mitigates the ris to you and your client and will enable safe distribution of the estate.

Indemnities Many lawyers may not be aware that there are useful insurance products to protect the practitioner and client ali e. nce a report is received from a professional probate genealogy rm, an application can be made to the insurer for a Missing Bene ciary Insurance policy, which indemni es all entitled bene ciaries against the possibility of a missing bene ciary ever turning up out of the blue, says rennan. e nd that this type of policy is becoming more and more popular among lawyers as awareness increases. It adds an extra layer of security to solicitors and their clients prior to the distribution of an estate. P Padraic Grennan can be contacted on 041 2133000 or info@erinresearch.ie


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Graham Dwyer Supreme Court Decision - DATA RETENTION IN THE SPOTLIGHT Signi cant and important data retention issues arise in the raham Dwyer case referred by the Supreme Court to the C on 24 ebruary 2020. Deirdre Crowley (left) and Denise Moran address the potential implications of this referral on public and private sector employers

O

n 24 ebruary 2020, the seven udge Supreme Court delivered its highly anticipated udgment in the case of raham Dwyer and the Commissioner of An arda S och na and others. Although this decision relates solely to the uestion of the validity of an Irish statute (the Communications ( etention of Data) Act 2011 (2011 Act)) having regard to law, the focus on the retention of data, albeit in the context of a criminal investigation, serves as an important reminder to all employers of their obligations regarding the retention of personal data. urther, the Supreme Court s commentary on the interplay between an individual s right to privacy and the re uirements for an investigation into, and potential prosecution of, a criminal o ence also serves as an important reminder to employers of the balance to be struc between an employee s right to privacy and the circumstances in which this may be trumped by an employer s right to lawfully process personal data.

Retaining Personal Data The 2011 Act governs the retention of data by service providers and access to such data by national authorities in Ireland including, in particular, An arda S och na (the arda ). During the murder trial of Mr Dwyer, the DPP placed reliance on evidence which was said to lin Mr Dwyer to certain phones, which lin ed him to data, which was said to identify where those phones were on certain relevant occasions and separately, to lin him to certain communications which were found on those phones. A nding that the 2011 Act, which permits the retention and access of certain data, is inconsistent with law would li ely be relied upon by Mr Dwyer in contending that such data should not have been admitted in evidence, and 44 the Parchment

such raises a uestion of the safety of his conviction. hile no express provision is contained in the Data Protection Act (201 Act) speci cally dealing with a re uest for information by the arda in an employment context, Part 5 of the 201 Act deals with the processing of personal data for law enforcement purposes and the arda are included in the de nition of a “competent authority�. Separately, section 41 of the 201 Act deals with the processing of personal data for purposes other than for the purpose for which it was collected. This section expressly provides that personal data may be shared to the extent that such processing is necessary and proportionate for preventing, detecting, investigating or prosecuting criminal o ences. This section may be relied upon to respond to a re uest by the arda for personal data held by an employer in relation to an employee. here an employer receives a written re uest for speci c information from the arda (not below the ran of chief superintendent) then section 41 comes into play for consideration by employers. As a data controller, where the personal data has not been purged, it is li ely that the re uested personal data will need to be shared with the arda . An ever-present challenge for any H function is the balancing act of observing data minimisation, i.e. the obligation on employers to retain data for no longer than is necessary, and the obligation to comply with statutory retention periods. mployers should rely on their data retention policies to assist in this process and ensure that all personal data which has no lawful basis for its retention is permanently and irretrievably deleted.

Balancing the Right to Privacy There is no disputing the fact that the right to privacy is a powerful and enabling personal right. It is a right that


Spring 2020 dsba.ie Deirdre Crowley is a partner at Matheson. Denise Moran is an associate at Matheson

is recognised by the Irish Constitution, the uropean Convention on Human ights and the Charter in undamental ights of the uropean nion. Any statutory provision that see s to trump this right in criminal proceedings, and indeed in the employment context, must have a signi cant usti cation. The Supreme Court stated that the analysis of any measure provided by law to permit the retention of such data would re uire consideration as to whether the measure a ects a protected right. If so, it is then necessary to determine whether any such interference pursues a legitimate ob ective. ext, and again if so, it must be determined whether the interference is no greater than is necessary to achieve the lawful ob ect and is proportionate in doing so. A very similar approach is re uired in balancing the rights of employees and those of the employer. e have seen instances where the Irish Data Protection Commissioner (DPC) has determined that the employer s legitimate interest trumps the employee s right to privacy in particular circumstances. This is particularly evident from the DPC s May 2019 guidance note on the use of CCT which provides that there may be situations where it will be deemed legitimate for an employer to rely on CCT footage for a purpose other than one identi ed at the outset to, for example, investigate an allegation of gross misconduct or other disciplinary matter and that such is usti ed on necessity and proportionality to achieve the given purpose. here an employer can demonstrate that the use of CCT is necessary to provide evidence and that their access to CCT footage is proportionate and limited in scope to the speci c investigation, the rights of the employee and their expectation of privacy will not be seen as

Data Law

overriding the interests of the employer in such circumstances, and the employee s right to privacy will not present a barrier to the investigation. It is li ely that any balancing test underta en which results in an employee s right to privacy being overridden by an employer s interests will remain the exception, and employers should exercise great care and caution where they see to override this right.

Learnings for Employers mployers are reminded that a commitment to robustly managing retention periods, to carefully considering applicable exemptions and to actively purging data that has no lawful basis for retention is crucial in ensuring compliance with the 201 Act and DP . The e ectiveness of a data retention policy relies solely on its adherence. This decision also brings into sharp focus the occasions on which it may be deemed lawful to process employee data where an employer s legitimate interest trumps the employee s right to privacy. astly, the ongoing criminal case giving rise to these proceedings also provides a reminder to employers that the burden of proof in the employment context is on the balance of probabilities which is a much lower threshold of determining culpability than in the context of criminal proceedings which is beyond reasonable doubt. It remains to be seen how the C will interpret law in relation to the data retention ueries referred to it, how the Supreme Court will give e ect to that ruling and how these decisions will impact upon Mr Dwyer s ultimate uest for his conviction to be successfully appealed. P

It is li ely that any balancing test underta en which results in an employee s right to privacy being overridden by an employer s interests will remain the exception, and employers should exercise great care and caution where they see to override this right the Parchment 45


Facial Recognition Technology

Is it Time to Face the Music? On 19 February 2020, the EU Commission released a White Paper outlining its vision for the development and regulation of arti cial intelligence (AI) in the uropean nion over the next ten years. Adam inlay and Siobh n Power ta e a closer loo

T

he White Paper sets out the EU’s strategy to become a world leader in AI, and in particular the central role AI will play in aiding in the achievement of the s Sustainable Development oals in coming years. However, it also expresses concerns about the proliferation of high ris AI such as automated facial recognition technology ( T), and the potential for this, without an -wide regulatory framewor put in place, to fragment the internal mar et. As recently as anuary 2020, the Commission was considering the introduction of a temporary ban of three to ve years on the use of T in public places, to allow time to develop an -wide approach. However, it seems the Commission has reconsidered this position, following the omission of the proposed ban from the hite Paper.

What is FRT and Where is it Used? T is a technology based on an algorithm that can identify individuals by automatically analysing ey facial features and generating a uni ue biometric template of these features. This template can then be compared against similar templates generated from a collection of nown faces in a database or watch list and possible matches may be determined. T can analyse facial features from still images or from live camera feeds and may also be deployed through real time CCT feeds to locate a particular individual. Concerns regarding T have arisen in recent years amid reports that the automated technology has repeatedly displayed racial and gender bias when deployed in crowds, often returning higher false 46 the Parchment

positive matches for women and certain ethnic groups ( algorithmic bias ). urther, the use of T on a large scale by law enforcement bodies, or even private security service providers, may interfere with a number of fundamental rights such as the right to privacy and rights of freedom of expression, association and assembly. To date, T has more typically been used by public authorities responsible for law enforcement and involves a high level of human oversight, however, it may be used by private entities in speci c circumstances. In uly 2019, Danish football club Br ndby I was authorised by the Danish Data Protection Agency (the Datatilsynet), for reasons of substantial public interest, to begin deploying live T in its stadium to identify blac listed fans and prevent them from entering during high pro le matches. Since ebruary 2020, the ondon Metropolitan Police has deployed live T, following a number of trials of the technology in di erent parts of the city. This system can match passers-by to a watch list of approximately 5,000 people who are wanted by the police or are missing persons in the area. Similarly, the South ales Police have deployed live T during large events in Cardi since 2017. The deployment during the A Champions eague inal that year resulted in a high incidence of false positives. f the 2,470 total matches made only 17 were true matches an accuracy rate of only 7 . evertheless, the High Court of ngland and ales has since found that the use of T by the South ales Police is in compliance with data protection law.


Spring 2020 dsba.ie Adam Finlay is a partner in the Technology & Innovation Group at McCann FitzGerald. Siobhán Power is an associate in the Technology & Innovation Group at McCann FitzGerald.

Data Law

Applicable Laws Biometric data here a facial template is analysed by means of technical processing for the purposes of identifying a natural person, this will be considered to be the processing of biometric data. Article 4(14) of the eneral Data Protection egulation ( DP ) de nes biometric data as personal data resulting from speci c technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or con rm the uni ue identi cation of that natural person, such as facial images or dactyloscopic data ( ngerprint data). The processing of images or footage of a data sub ect will not be considered to involve the processing of biometric data unless it allows for the uni ue identi cation or authentication of the data sub ect. Restrictions on processing biometric data Biometric data is a special category of personal data and processing biometric data is generally prohibited under Article 9(1) of the DP . Processing biometric data may be permissible, sub ect to one of the exceptions listed in Article 9(2) of the DP that include processing with explicit consent of the data sub ect (Article 9(2)(a)) to protect the vital interests of the data sub ect or another natural person (Article 9(2)(c)) personal data that has manifestly been made public by the data sub ect (Article 9(2)(e)) and necessary for reasons of substantial public interest (sub ect to suitable and speci c measures to safeguard the fundamental rights and interests of the data sub ect) (Article 9(2)(g)). The use of T identi cation by private controllers will most li ely re uire reliance on the explicit consent of the data sub ect. It is important for any controller considering relying on consent to use T to ensure that consent may be withdrawn at any time. Although other exceptions may be applicable, the uropean Data Protection Board ( DPB) has re ected that the exception under Article 9(2)(e) (processing data that have been manifestly made public) could be relied on to process biometric data in the context of live video surveillance, stating that the mere fact of entering into the range of the camera does not imply that the data sub ect intends to ma e public special categories of data relating to him or her . It is important to remember that Article 6 of the DP must be complied with as well as Article 9 when processing biometric data. This means that a clear legal basis for the processing must be established before a controller can consider which exception may be relied upon under Article 9(2). T is currently more commonly deployed by criminal law enforcement bodies. In these instances the processing activities will be sub ect to the aw nforcement Directive ( D), as transposed into Member State law, rather than the DP . A data protection impact assessment (DPIA) will be re uired where the use of T by a controller is being considered, as T is li ely to result in a high ris to the rights and freedoms of data sub ects. If a high ris to the data sub ect is found by the DPIA which

cannot be mitigated by the controller, the relevant organisation s competent data protection supervisory authority must be consulted for both DP and D purposes.

Developing an “Ecosystem of Trust” In the Commission hite Paper one of the ey strategies to promote successful development of AI in the is the establishment of an ecosystem of trust at an early stage, to ensure that Member States and citizens embrace the bene ts that AI can o er. As the use of AI for remote biometric identi cation (including T) and other intrusive surveillance technologies would always be considered to be highris , according to the hite Paper, they will re uire a number of additional safeguards to guarantee this trust, including ensuring AI systems are trained on data that is sufficiently broad to avoid dangerous situations and discrimination ta ing into account the complexity of the decisionma ing processes of AI systems (sometimes called the blac box e ect), it will be essential to eep records of the programming of the algorithm, the training methodologies applied to the AI system and the data used to train the AI system providing ade uate information to data sub ects regarding high ris AI on the system s capabilities and limitations and individuals should be clearly informed when they are interacting with AI ensuring that all ris s that an AI system may generate are routinely considered and ensuring that the AI is as technically accurate as possible • ensuring appropriate oversight from natural persons is in place to ensure that AI systems operate in an ethical and trustworthy manner and allowing the use of T and other biometric identi cation only when in accordance with the DP and the D and where such use is duly usti ed, proportionate and sub ect to ade uate safeguards. P

The use of T on a large scale by law enforcement bodies, or even private security service providers, may interfere with a number of fundamental rights such as the right to privacy and rights of freedom of expression, association and assembly the Parchment 47


Jeremy Erwin is a partner and Michael Kelly is a solicitor with Hayes Solicitors

Litigation

Supreme Court Confirms that a Receiver may be Appointed over EU Agricultural Grants Jeremy Erwin and Michael Kelly review the recent Supreme Court decision in ACC Loan Management v Mark Rickard and erard ic ard which has con rmed that a udgment creditor may apply to court to appoint a receiver by way of equitable execution over future entitlements due to a judgment debtor, such as the Basic Payment Scheme (BPS)

I

n this case, ACC obtained judgment in the High Court against the Defendants in February 2011. ACC formed the view that, even following the sale of the secured assets, there would be a signi cant shortfall on the debt due. On that basis, ACC applied to appoint a receiver over the Single arm Payment (S P) entitlements (worth approximately 170,000 per annum) of the irst amed Defendant, Mr Mar ic ard ( Mr ic ard ). An order appointing a receiver by way of equitable execution was granted by the High Court on 4 October 2011 and was varied by the High Court on 13 July 2015 after the SFP was replaced by the BPS. Traditionally in this jurisdiction, a receiver by way of equitable execution could only be appointed in cases where a debtor enjoys an equitable interest (such as a be uest under a will) in an asset which cannot be reached by the usual enforcement options and the creditor had a vested or contingent interest in the property. Therefore, where a judgement debtor owns an asset, a judgment creditor would enforce against the property itself rather than any equitable interest the judgment debtor might also hold. This principle was set in National Irish Bank Limited v

20 the Parchment

Graham. In that judgment Mr Justice Ronan Keane focused heavily on the interpretation of the Judicature Act 1 77 (the 1 77 Act ). The 2015 Order was appealed by Mr Rickard to the Court of Appeal which based on a 21st century interpretation of Section 2 ( ) of the 1 77 Act and persuasive nglish authorities formed the view that the Courts are not precluded from appointing a receiver by way of equitable execution, even where what is sought to be executed against is a legal interest (such as ownership) in property of a udgment debtor. Mr Rickard appealed that decision to the Supreme Court. In his appeal he argued, inter alia, that the interpretation of the law as set out in the Graham decision should be adopted and that the appointment of a receiver by way of equitable execution over the BPS should be excluded as a matter of policy. Section 2 ( ) sets out the Court s power to appoint receivers and grant injunctions. It states that the Court shall have the power to appoint a receiver where it is “just or convenient that such an order should be made�. The Supreme Court upheld the ruling of the Court of Appeal and held that the appointment of a receiver was warranted and usti able where Mr ic ard had made no complaint about the e ect of the prior appointment (in 2011) on his nances (his appeal was based on legal principles only and in respect of the 2015 rder). The Court made clear that what will be deemed just or convenient will be a matter for the Court to determine on the facts of each case and that an appointment of a receiver by equitable execution should not be overly onerous on the judgment debtor. This case is particularly relevant to judgment creditors who may have formed the view that enforcing a xed charge over agricultural land is not economically viable, and provides legal certainty to an alternative avenue to pursue judgment debts in this jurisdiction. That avenue will only be granted by a court where they are satis ed that it is ust to do so. P


Spring 2020 dsba.ie Anne Stephenson is principal at Stephenson Burns Solicitors Brendan Hayes is an associate solicitor at A&L Goodbody

Probate/Finance

A Duo of Probate Changes Anne Stephenson provides some sage Probate advice to practitioners

W

hen applying for Grants of epresentation to the Seat ffice two changes need to be noted, rstly regarding Affidavits of Mar et alue and secondly regarding Charitable

Bequest Forms. Affidavits of Mar et alue have been abolished. What now is required? There is a boon for Probate Practitioners under the new system in that if the Probate papers are lodged within twelve months of the date of death, no proof of current mar et value will need to be submitted at all, much less an Affidavit of Mar et alue. If the papers are lodged after twelve months then it’s the value at that time in all circumstances BUT even then, no Affidavit of Mar et alue is re uired. There has been a tendency for auctioneers, when providing a valuation, to produce an eight or ten-page bound document, which the Probate ffice must read in its entirety which necessitates more time been ta en to process the application.

All that is needed now is a letter from the auctioneer stating the value. A “letter” is the operative word here, should a current valuation be needed, as to quote the Probate fficer “.. three lines are sufficient”.

New Charitable Bequest Form The Probate ffice and the Charities egulator have introduced a revised practice whereby solicitors, where there is a charitable legacy, applying for rants, will rst have to complete a new electronic form “Charitable Bequest orm”, which replaces the existing PAS3 Form. irstly, it must be submitted to the Charities egulator electronically via the “ y Account” system and secondly, printed o and signed by the solicitor and thirdly, then as usual, presented to the Seat ffice with the other papers. Thus, if practitioners have not done so already, they must create a “ y Account” and le electronically as otherwise the papers will be rejected. See www. charitiesregulator.ie/en/myaccount or www. charitiesregulator.ie for further information on the form required and how to create an account.

New Regime at Central Bank The Central Ban of Ireland wields signi cant powers to impose regulatory sanctions on rms and individuals. Brendan Hayes says it is advisable that rms ta e preparatory steps now in advance of the roll-out of an enhanced individual accountability regime Ireland – a Global Hub of Financial Services Ireland has, in recent years, become a global hub for nancial services. Current gures indicate that 250 of the world s leading nancial services rms are located in Ireland, including half of the world s top 50 ban s, and the sector employs over 40,000 people. The Central Ban of Ireland regulates and supervises nancial services providers in Ireland and has lately imposed record-brea ing penalties on rms and individuals. This is very signi cant given that nancial services is such a ey part of the Irish economy. Central Ban activity is therefore a ey focus for these rms, their individual employees and their legal advisers, both in house and external.

Central Bank of Ireland’s Powers – The Current Landscape Currently, the regulator can impose a maximum penalty of 10 million or 10 of turnover, whichever is greater, on rms for prescribed contraventions. Individuals who are concerned in the management of a rm can be ned up to 1 million and dis uali ed, where they are found to have participated in a rm s breach. Prescribed contraventions covers an exceptionally broad range of domestic legislation, codes of conduct made by the Central Ban and

conditions or obligations otherwise imposed on a rm or individual by the Central Ban . The regulator also has the ability to conduct a gate eeping function in respect of appointments to certain pre-approved controlled functions in rms under the Central Ban eform Act 2010. The Central Ban has indicated that it is prioritising ongoing investigations against individuals in 2020. To date, the regulator has ta en several cases against individuals with nes imposed varying from 20,000 up to 200,000 although individuals have not always been in a position to discharge the penalty. The Central Ban is limited to imposing penalties that will not cause a rm to cease business or an individual to be ad udicated ban rupt and in one instance, the regulator waived a ne of 105,000 due to the individual being ad udicated ban rupt.

Conclusion The nancial services rms in Ireland and their 40,000 employees need to prepare for the new conduct standards and accountability regime being imposed by the Central Ban . This will include a detailed governance review, redrafting employment contracts and related procedures and preparing documents and procedures for compliance with the new rules. P the Parchment 49


Implication of Portfolio Sales for Litigation Sam Collins BL gives an overview of how the courts have been addressing litigation of portfolio sales of ‘non performing loans’

Introduction In Friends First Finance v Moloney 2019 I HC 44 (Moloney) Meenan . identi ed loan sales between nancial institutions as “one of the legacies of the economic crash”. Such sales form a ey part of many lenders e orts to deal with non-performing loans ( P s) and bring P ratios within regulatory re uirements. here proceedings are issued on foot of a facility ac uired by a nancial institution (referred to as a fund in this article), that fund s advisers must carefully consider the appropriate parties to proceedings and uestions of evidence. These considerations are separate from, and additional to, common re uirements for all plainti s, such as the particulars in a summary summons re uired by rder 4 rule 4 of the ules of the Superior Courts ( SC), as recently explained by the Supreme Court in Bank of Ireland Mortgage Bank v O’Malley 2019 I SC 4.

Parties here a fund has ac uired an interest in a relevant facility, the appropriate parties to proceedings may be determined by reference to the date of accrual of the cause of action, and to the terms of the relevant loan sale documentation. A fund s ability to litigate in respect of ac uired facilities will be speci ed, often through the ac uisition of ancillary rights and claims. oan sale documentation might separately provide for current or future litigation in which the original lender (referred to as a ban in this article) is plainti or defendant. here a ban retains the legal interest in a facility, with the bene cial interest passing to a fund, the ban will generally remain the appropriate plainti . 50 the Parchment

The SC are permissive in respect of parties. rder 15 rules 1 and 14 SC provide for the addition, deletion or substitution of a party at any stage, by motion before trial, or in a summary manner at trial. rder 17 rule 4 SC permits the addition of a party ex parte where necessary or desirable following a transmission of interest. A prima facie test generally applies (IB C v Comer 2014 I HC 671) but, in Bank of Scotland v McDermott 2019 I CA 142, the ordinary civil standard of proof on the balance of probabilities was held to apply where udgment had already been obtained. mnibus substitution orders may be made, as explained in Moloney. An application may be made ex parte under rder 17 rule 4 SC, grounded on an affidavit setting out (with appropriate exhibits) the deponent’s belief as to the valid transfer of the plainti s interest to the applicant, and valid noti cation to the defendant (in the form of “goodbye” and “hello” letters). A schedule may be exhibited describing up to 100 proceedings in which an identical order is sought. A separate schedule should be prepared for proceedings which have issued but not been served. here an order is made, a copy of the order should be served on each a ected defendant, with a notice stating that (a) copies of the grounding affidavit and exhibits are available on re uest (b) they may apply to set aside the order, insofar as it a ects them and (c) they may challenge the validity of the transfer at the hearing of the proceedings. here one year or more has elapsed since the last step in the proceedings, a notice of intention to proceed under rder 122 rule 11 SC does not need to issue before the substitution application, but should be served together with the copy order and prescribed


Spring 2020 dsba.ie

Litigation

Sam Collins BL is a practising barrister

notice. Meenan . observed, obiter, that an omnibus application is not appropriate for proceedings where udgment has already been obtained. rder 6 rules (1) and 7 SC, and rder 6A rule 2(1) SC, provide for addition or substitution of parties in appeals in the Court of Appeal. rder 5 rules , and 29 SC set out similar provisions for appeals in the Supreme Court. here an appellate court ma es a substitution or addition order it will do so in a manner consistent with its appellate function ( ’ eeffe v An ord leanála 199 1 I 9), for example by only permitting a fund to advance arguments which could have been made by the original lender, as occurred in IBRC v Halpin 2014 I CA (followed in Bank of Scotland plc v O’Connor 2017 I CA 54) where a fund was added as coplainti co-respondent to appeals from udgments entered in 2012 and 201 in respect of facilities it ac uired in 2014.

Affidavit Evidence vidence by loan servicer deponents has been challenged as inadmissible hearsay. Such a challenge was unsuccessful in romontoria (Arrow) td v urke 201 I HC 77 , but was held to give rise to an issue re uiring delivery of a supplemental affidavit in romontoria (Aran) td v urns 2019 I HC 75. Affidavits sworn by a loan servicer, with a further affidavit sworn by a director of the plainti , were held to be admissible evidence in romontoria (Gem) DAC v urphy 2019 I HC 95 and Promontoria ( inn) td v Boyle 2019 I HC 46 , both applications for summary udgment. here a loan servicer deponent was previously employed by the plainti and was

personally involved in managing the relevant facilities, as in Bank of Scotland plc v Beades 2019 I SC 61, their evidence is not hearsay.

Inspection and Redaction The permissible level of redaction of loan sale documentation has been considered in several recent udgments. In Courtney v C E Debtco DAC 2019 I M 166 (Courtney), Haughton . directed the disclosure to the plainti of less redacted loan sale documentation (a redacted copy of which had been exhibited to an affidavit grounding an application for admission to the Commercial ist). Third party data remained redacted and disclosure was directed to an identi ed group (a con dentiality ring) sub ect to underta ings restricting further disclosure. In romontoria (Aran) td v Sheehy 2019 I HC 61 , discovery was directed of documents relating to the price paid for the defendant s loans. Although the price paid by a fund for a loan is not relevant to an application for summary udgment, it was held by uinn . to be relevant to pleaded claims for restitution and un ust enrichment. As in Courtney, a con dentiality ring was established, and uinn . made directions restricting further dissemination of the unredacted material.

A fund s ability to litigate in respect of ac uired facilities will be speci ed, often through the ac uisition of ancillary rights and claims

Conclusion Advisers to funds should eep abreast of developments in the above areas, which can inform the structure and provisions of loan sales (including any continuing obligations to provide documentation or other assistance), as well as the appropriate litigation strategy to be adopted in respect of P s. P the Parchment 51


Periodic Payment Orders: Index has to Change to Meet Future Care Needs ith the rst Periodic Payment rder (PP ) made ust over a year ago, Daragh Bur e reviews the legal position and highlights a recent High Court udgment which dealt further with indexation of awards

T

he rst PP was awarded by an Irish Court in ebruary 2019. The 1 year old plainti su ered brain damage at birth and was awarded an annual payment of 610,000 for the remainder of her life. The plainti s case against the otunda Hospital was settled in 2012 without an admission of liability on behalf of the hospital. Interim settlement payments of 2.94 million had already been awarded to the plainti . The commencement of the Civil iability (Amendment) Act 2017 by the Minister for ustice and uality in ctober 201 , allowed the court to award a PP which Mr. ustice Peter Kelly described as being in the best interests of the plainti .

Lump Sum Payments Prior to the commencement of the 2017 Act, the courts were only able to award lump sum payments in catastrophic in ury cases with interim payments schemes also being utilised in recent years in cases where the parties were waiting for the legislation to be enacted. However, lump sum payments were not always t for purpose and could leave a plainti in a precarious position should they outlive the life expectancy used to calculate the amount of future care that they may re uire. rom a defendant s perspective it was also possible that a lump sum payment could over compensate a plainti .

The 2017 Act The 2017 Act de nes catastrophic in ury as a personal in ury of such severity that it results in a permanent disability re uiring the person to receive life-long care and assistance in daily living or a substantial part thereof. Where a court awards damages for personal in uries to a plainti who has su ered a catastrophic in ury, the court may order that the whole or part of the damages be paid by the defendant in the form of a PPO in such amounts as the court may determine. An award of damages by PPO can be made under the Act where the damages relate to; 52 the Parchment

• the future medical treatment of the plainti • the future care of the plainti • the provision of assistive technology or other aids and appliances associated with the medical treatment and care of the plainti • future loss of earnings where both parties consent in writing The court has discretion to decide whether to award a PPO whether both parties consent or not and will consider whether it is in the best interest of the plainti and the particular circumstances of the case. nder subsection (2) of section 51I of the Act, the court shall take into consideration inter alia the form of award preferred by the plainti and the defendant and the reasons for same and any nancial advice received by the plainti . nder subsection ( ) of section 51I, where both parties agree to the payment of all or part of the damages by PPO, the court has discretion to either make a PPO in accordance with the agreed terms, refuse the application or refuse the application and ma e a PP under subsection (1) of section 51I of the Act. A PPO will specify the annual amount awarded to the plainti , the fre uency and method of the payments and the amount of damages awarded in respect of the future medical treatment, future care and provision of assistive technology/aids and appliances associated with the medical treatment and care of the plainti and the amount awarded for loss of earnings if applicable. Any award made by way of PPO is exempt from tax under section 1 9B of the Taxes Consolidation Act (TCA) 1997.

Stepped Payments The 2017 Act also provides for stepped payments where it is anticipated that there will be changes in the plainti s circumstances during their lifetime that are li ely to have an e ect on their needs. In such circumstances the court can make provision in the PP that from a speci ed date a payment


Spring 2020 dsba.ie Daragh Burke is a solicitor with Amorys Solicitors

can be either increased or decreased by a speci ed amount. The changes in circumstances could include the plainti starting primary or secondary school, reaching the age of 1 , entering third level education or predictable changes in care needs such as moving into residential care.

Security of Payments A court must be satis ed that the continuity of payment is reasonably secure . The court shall have regard to whether; • the defendant is a state authority and the payments are protected under a scheme of indemnity administered by the State • the PP is eligible for payment from the Insurance Compensation und (established under section 2 of the Insurance Act 1964) or the MIBI (Motor Insurers Bureau of Ireland) or • the continuity of payment can be guaranteed by some other means.

Indexation The annual amount awarded to a plainti under a PP in Ireland will be ad usted annually in line with the Harmonised Index of Consumer Prices (HICP) which is sub ect to ministerial review every ve years. The Minister has the power under the Act to change the index used if following review a di erent index would be deemed to be more appropriate for indexation purposes.

Litigation

Indexation is, however, one of the main concerns of plainti s, their families and advisors regarding the PP legislation as the HICP does not measure increases in the cost of medical appliances or the salaries of care wor ers which will ma e up a signi cant proportion of a PP . PP s in the K use the ASH 6115 Index, which is an annual earnings survey applicable to home carers and care assistants. However, there is no e uivalent index in Ireland. Another di erence between the Irish and K PP system is that there is no power given to the Irish courts to ma e a variation order, meaning that a plainti is unable, under the current legislation, to return to court following a deterioration in their condition. ustice Deirdre Murphy addressed at length the difficulties indexation using the HICP presented for plainti s in a recent High Court udgment in Hegarty Anor v- HS (2019 I HC 7 ) where a minor had su ered catastrophic in ury at birth in Cor niversity Maternity Hospital. She concluded that there was overwhelming evidence that a PP lin ed to the HCIP would lead to under-compensation for plainti s. ne expert witness estimated that as a matter of probability that after 10 years the PP would only meet 6 of the plainti s care needs leading to a shortfall of 14 , after 20 years the shortfall would be 26 and at age 50 only 4 of the plainti s car costs would be covered by the PP . ustice Murphy found that in circumstances where the expert evidence is unanimous that the indexation chosen (HIC ) will not meet the future care needs of catastrophically in ured plaintiffs, then no udge, charged with protecting the best interests of a plaintiff could approve a periodic payment order ad usted by reference to the HIC ”. urthermore she held that It is clear that no competent financial expert would recommend a periodic payment order linked to the harmonised index of consumer prices to provide for the future care needs of a plaintiff. In its current form therefore, the legislation is regrettably a dead letter. It is not in the best interests of a catastrophically interested plaintiff to apply for a under the current legislative scheme. The purpose of the PPO legislation was to ensure that the future care needs of catastrophically in ured plainti s are funded for the rest of their lives and to remove the uncertainty regarding future care costs associated with lump sum payments. The courts in the K have discretion, under the Damages Act 1996, to devise an indexation measure by which the PPO would increase in a manner capable of ensuring that the plainti s future care needs are met. However the Irish courts can only use the HICP index which does not account for increases in the cost of medical appliances or care wor ers costs. As a result, plainti s ris being seriously under-compensated for their future care needs. ustice Murphy s decision has shed light on the practical difficulties of using the HICP index instead of a wage based index such as in the K when the courts are see ing to ensure that a plainti will be fully compensated for their future care needs. Unless the Minister uses the power under the Act to change the index to one which ma es the legislation t for purpose to ade uately compensate catastrophically in ured plainti s for their future care costs, the 2017 Act unfortunately risks being redundant. P

The Minister has the power under the Act to change the index used if, following review a di erent index, would be deemed to be more appropriate for indexation purposes

the Parchment 53


Charity Table Quiz – a Great Success The Younger Members Committee of the DSBA in conjunction with the Young Professionals of the Chartered Accountants and the Legal & Finance Network organised a table quiz in aid of the Emer Casey Foundation in Mulligan & Haines, 32 Dame Street on the 21st November last. The event was very kindly sponsored by Brightwater Recruitment. It was a tremendous night with a turnout of over 160 people forming 29 teams of both junior solicitors and accountants. Comedian Christina McMahon was quizmaster on the evening and put questions to creatively named teams such as uizClose Trust’, ‘Quiz Pendens’, ‘Ignorant until proven Guilty’ and ‘Trivial Recruit’ (unsurprisingly a Brightwater team). In total over €1,400 was raised for the Emer Casey Foundation. The Foundation was established to fund the detection, prevention and cure of ovarian cancer and

was set up in 2006 following the death of Emer Casey, a young solicitor from Cork who was working with Mathesons at the time of her diagnosis. The Committee wish to thank everyone who supported the event on the night and who bought ra e tic ets. In particular, the Committees wish to thank Brightwater for sponsoring the event and to everyone who sponsored a prize.

DSBA Presents Charity Cheque to Dublin Lord Mayor

DSBA Council members at the Mansion House

DSBA President Tony O’Sullivan recently met with the ord Mayor of Dublin Paul McAuli e at the Mansion House and presented him with a cheque for the Mansion House Fuel Fund. The Mansion House Fuel Fund was founded by Sir John Arnott in 1891. It was originally set 54 the Parchment

up to assist the needy during the cold winter. The Fund distributes cash grants through a number of Charitable Societies, without any distinction of creed. It was one of the rst truly Ecumenical Charities in Dublin. Some of the Charities whom the Mansion House

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


Spring 2020 dsba.ie

News

DSBA President Attends Mayo and Waterford Events

At the Mayo Solicitors’ Bar Association Annual Dinner were: Suzanne Rice - Senior Vice President Law Society of Northern Ireland; Enda Lavery – Chairman of the Belfast Solicitors Association; Dermott Morahan President Mayo Solicitors’ Bar Association; Michele O’Boyle - President of the Law Society and Tony O’Sullivan - President of the DSBA

DSBA President Tony O’Sullivan had the privilege of visiting a number of other county Solicitors’ Bar Associations in recent months. The Mayo Solicitors’ Bar Association Annual Dinner was held in December, as was the Waterford Solicitors’ Bar Association.

At the Waterford Solicitors Bar Association Annual Dinner were: Joyce Hammond Good, Morette Kinsella, Deirdre Walsh, DSBA President Tony O’Sullivan and David Smyth

Sherwin O’Riordan in Charity Fundraiser Sherwin O’Riordan Solicitors will take part in the rm s rst Charity Hi e in aid of the Irish outh oundation (I ) when they climb Lugnaquilla, the highest mountain in Leinster. The chosen project they are supporting is the ‘Just ASK’ Homework Club on Dominick Street, Dublin 1. ust ASK is an after-school support pro ect which transforms the lives of children and young people aged 6-1 years living in extremely challenging circumstances through educational, emotional and practical support. Currently part-funded by I , it provides weekly activities for up to 120 children and teens, and their families. As well as weekly activities, the project is a beacon of hope in the local community o ering support to

families in crisis situations, a safe space for young people who are most vulnerable and hot healthy dinners to the children four days per week. Commenting on the charity initiative, James Sherwin, Partner at Sherwin O’Riordan said; “We are delighted to be partnering with the Irish Youth Foundation for this charity hike. The Just ASK project is a wonderful initiative that o ers valuable support and help to disadvantaged children in the area. In addition, the Irish Youth Foundation does incredible work in giving the youth of our country opportunities to thrive and develop in so many areas of their lives, particularly through education. As a rm, we have always greatly admired them

as a charity organisation that truly ful ls its remit.” Donations can be made at: https www.gofundme.com f irish-youthfoundation-charity-hi e

the Parchment 55


Property Seminar

The DSBA Property Committee hosted a seminar on the 30th January 2020 entitled “Landlord and Tenant Case Law Update – Repairs and Dilapidation and Ground Rent.” The speakers were Paul Hutchinson BL; Val O’Brien, Surveyor – Val O’Brien and Associates and Ruth Cannon BL.

Photography: Owen O’Connor

Left: Paul Hutchinson BL, Ronan McLoughlin and Val O’Brien

Left: Paul Hutchinson, speaker and Matthew Ryan, Ryans Solicitors Far left: Paul Hutchinson, Ruth Cannon and Val O’Brien

Right: Melanie Boyle, Charles B W Boyle & Son and Sally Alford, Gore & Grimes Far right: David Murphy, Corrigan & Corrigan; Caroline Keane, M E Veale & Co and Patrick White, Patrick White & Co

Left: Elaine Lynch, Eversheds Sutherland; Conor O’Donnell, A & L Goodbody and Cecelia Joyce, A & L Goodbody Far left: Susan O’Halloran, Becker Tansey & Co; Shauna O’Gorman, O’Gorman Solicitors and Rachel Niall, Chief State Solicitor’s Office

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Spring 2020 dsba.ie

Left: Ronan McLoughlin, Gallagher Shatter, Chair of the Property Committee; Roisin Bennett, Reddy Charlton Solicitors and Ethna Ryan, Griffin Solicitors Far left: Albert Fagan, Albert Fagan Solicitors and Joanne Sheehan, Cornelius Sheehan & Co

Right: Ciaran O’Donohoe, Miley & Miley and Sharon Dunning, Miley & Miley Far right: Jack Walsh, Partners at Law and Jacinta O’Sullivan, Patrick F O’Reilly & Co

Left: Deirdre Walsh, Chief State Solicitor’s Office and Sarah Lavelle, Eugene F Collins Far left: Sarah Flynn, Corrigan & Corrigan and Maureen Synott, Dublin City Council

Right: Brian Roe, Hughes & Liddy and Jim Gollogley, J S Gollogley Solicitors

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Practice Management Seminar

The DSBA Practice Management Committee hosted a seminar on the 11th December 2019 which dealt with “Property Fraud, Cyber Security, Recovery of Costs and Section 150 Obligations.” The speakers were Rory O’Neill, Law Society; Barry O’Neill, Consultant Solicitor and Keith Walsh, Keith Walsh Solicitors.

Photography: Owen O’Connor

Left to right: Speakers Keith Walsh, Barry O’Neill and Rory O’Neill with Joan Doran, Chair

Left: John Plunkett, Plunkett Kirwans & Co; Niall Corr, Niall Corr & Co and Niall Black, Richard Black Far left: Laura Horan, Fiona D’Arcy & Co and Barry O’Neill, speaker

Right: Davnet O’Driscoll, DT O’Driscoll Solicitors and Darach Connolly, Darach Connolly Far right: John Flynn, Murray Flynn Maguire and Joseph Curran, Daniel J Reilly & Co

Left: Niall McCabe, Bowman McCabe and Peter Doyle, Peter Doyle Far left: John Griffin, Griffin Solicitors and Ronan Doherty, O’Reilly Doherty & Co

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Spring 2020 dsba.ie Photography: Owen O’Connor

Left to right: Maeve Delargy, DSBA Younger Members Committee; Deirdre Nally, DAC Beachcroft; Fiona McKeever, speaker; Deirdre Farrell, DSBA Younger Members Committee; Aideen Shanley, DSBA Younger Members Committee and Ciara Cloake, DSBA Younger Members Committee

DSBA Younger Members Seminar

The DSBA Younger Members Committee held a seminar on the 6th February 2020 at the offices of Morgan McKinley. One of the topics was “Developing your Network and Networking Skills” Key speaker was Fiona McKeever of Arthur Cox. The DSBA Younger Members Committee wish to thank Morgan McKinley for kindly sponsoring the event.

Left: Bernardo Pina, Morgan McKinley; Fiona McKeever, speaker and John Cronin, Morgan McKinley Far left: Martin Ham, Fiona McKeever, Speaker and Dr Mary Collins, RCSI

Right: Maeve Delargy, DSBA Younger Members Committee; Claire O’Hagan, DSBA Younger Members Committee; Bernardo Pina, Morgan McKinley and Aoife Kearney, Maples Group Far right: Niamh McMahon, DAC Beachcroft; Deirdre Nally, DSBA Younger Members Committee and Anne Marie Browne, DAC Beachcroft Left: Letícia McGuire, G J Moloney Solicitors; Ronan Byrne, G J Moloney Solicitors and Aoife Kenny, G J Moloney Solicitors Far left: Fiona Richardson, Morgan McKinley and Aideen Shanley, DSBA Younger Members Committee

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Dublin Southside Solicitors Annual Gathering

The solicitors of Dun Laoghaire and surrounding environs gathered for the 35th annual black tie dinner on the 31st January 2020. The venue was the Royal St. George Yacht Club and a great night was had by all. This year’s dinner was in aid of Research MND and in excess of €10,000 was raised for the cause.

Photography: Cian Redmond

Left to right: Susan Martin, DSBA President Tony O’Sullivan and Paul Ryan

Left: Greg Ryan and Domhnall Murray Far left: Angela McCann, Joanne Sheehan and Michael Moran

Right: Aileen O’Brien, Ann O’Brien, Patricia O’Brien and Kate O’Brien Far right: Anne O’Grady Walsh, Jeremiah O’Brien and Mary Griffin

Left: Judge David Kennedy, Jack Meehan and Niall Cawley Far left: Jeanne Cullen and Des Thorpe

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Spring 2020 dsba.ie

Right: David Nolan SC, Justin McKenna, Niall Cawley and Patricia Nolan Far right: William O’Grady and Carmel O’Grady

Far left: Aisling McNiffe and Philip Clarke

Right: Yvonne Allen, Mary Swords and Anne O’Grady Walsh Far right: David Tarrant and Shane O’Loughlin

Left: Susan Martin and Michael Mulcahy SC Far left: Patricia Twomey and Brendan Twomey

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Probate and Tax Seminar

The DSBA Probate and Tax Committee hosted a seminar on the 13th February 2020 entitled “The New Decade.” The speakers were Anne Stephenson, Stephenson Burns Solicitors; Padraic Courtney, Law Society and Ciara Cahill, Charities Regulator.

Photography: Owen O’Connor

Left to right: Speaker Anne Stephenson, Stephenson Burns, Trea McGuinness, Deputy Chair of DSBA Probate & Tax Committee and speaker Padraic Courtney, Law Society

Left: Erica Champ, Anne Cunningham, Deirdre Smith and Frank Owen Sugrue, all Office of the General Solicitor for Minors and Wards of Court Far left: Nicola Kelly, John C Kieran & Son and Susan Boyle, John C Kieran & Son

Right: Andrew Fay, N J Downes & Co and Mark Graham, Legal Aid Board Far right: Jill Lee, Lee Solicitors and Rosaleen Connolly

Left: Joe Durkan, Keith Walsh Solicitors and Cillian Thornton, Chief State Solicitors Office Far left: Owen Burke, Mullany Walsh Maxwells and Úna Burns, Stephenson Burns Solicitors

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Spring 2020 dsba.ie Photography: Owen O’Connor

Left to right: Susan Martin, Martin Solicitors; Fergus Gallagher, Fitzpatrick Gallagher McEvoy Solicitors; Michael Commons, Ivor Fitzpatrick; Killian O’Reilly, Fieldfisher and Joanne Cooney, Fieldfisher

Litigation Seminar

The DSBA Litigation Committee hosted a seminar on the 20th February 2020 entitled “Debt Collection and Enforcement: Section 150 for Debt Collection Files.” The speakers were Michael Commons, Ivor Fitzpatrick; Joanne Cooney, Fieldfisher; Susan Martin, Martin Solicitors and Fergus Gallagher, Dublin County Sheriff.

Left: Cliodhna Walsh, Beauchamps and Gavin Anderson, Beauchamps Far left: Clodagh Buckley, Gore and Grimes and Michael Commons, Ivor Fitzpatrick

Right: Neal Murphy, Murphys Solicitors and Aimee Dillon, Liston & Co Far right: Fergus Gallagher, Fitzpatrick Gallagher McEvoy Solicitors and Louise Garland, Marcus Lynch Solicitors

Left: Sarah Bruen, Shannon & O’Connor Solicitors and Ciara Smyth, LK Shields Far left: Joanne Tackney, Smith Foy & Partners and Déana Weir, Porter Morris Solicitors

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Commercial Law Seminar

The DSBA Commercial Law Committee hosted a seminar on the 26th February 2020 entitled “Updated DSBA Specimen Share Purchase Agreement.” The speakers were Mark Quealy, William Fry; Rachel Fox, William Fry; Edon Byrnes, DWF; Lisa McEllin, LK Shields and Conall Geraghty, Mason Hayes & Curran.

Photography: Owen O’Connor

Left to right: Mark Quealy, William Fry; Edon Byrnes, DWF; Thomas Baker, Rachel Fox, William Fry; Conall Geraghty, Mason Hayes and Curran & Co; Lisa McEllin, LK Shields Solicitors and Paul Ryan, Chairperson of the DSBA Commercial Law Committee

Left: Gillian Hobbs, Beauchamps; Jennifer Ryan, Beauchamps and Paul Martin, Shannon & O’Connor Solicitors Far left: Bob Walsh, McGovern Walsh & Co and Brian McMullin, Brian J McMullin

Right: David Larney, Gleeson McGrath Baldwin and Stuart Creavin, Creavin & Co Far right: John Plunkett, Plunkett Kirwan & Co and William Lacy, Lacy Walsh

Left: Stan Murphy, Murphy Solicitors; John O’Malley, John P O’Malley & Co and Paddy Troy, Patrick Troy & Co Far left: Caoimhe McCrea, Reddy Charlton and Deirdre Farrell, Amorys Solicitors

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