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D UB LIN SOLICITORS B AR ASSOCIATION MAGAZ INE | SPRIN G 2021 | ISSU E 87

COVID-19 AND THE WORKPLACE Essential considerations for employers

LAW SOCIETY DG KEN MURPHY BOWS OUT VICTORY FOR PUBLICANS


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Spring 2021 dsba.ie

From the Editor

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s we go to print, the Judicial Council has approved new personal injury guidelines. This will see many changes to the personal injury landscape and how victims of personal injury are dealt with before the Courts. A detailed analysis of the new guidelines will be carried in our next edition. At that stage, the guidelines will most likely have become enshrined in legislation. It is a new era for personal injury litigation and whether we like it or not, it will have to be embraced. This edition of the Parchment has a strong Covid theme. We have articles on vaccinations in the workplace; Contracts of Employment during Covid; the legal position on remote working and my own interview following Covid hospitalisation. Ken Murphy departs the Law Society after a lifetime of service to the legal profession. Stuart Gilhooly crossexamines the legendary Director General who retires later this month. Ken has left extremely large shoes to fill and his retirement will leave a huge vacuum that will be felt for a long time to come. The DSBA wishes

Ken a very happy next chapter and acknowledges his unstinting service to the profession over the past three decades. We sadly said goodbye to a number of colleagues since our last edition. We remember the late Colm Price, Mary MacNeill and Tim Scanlon. Their passing reminds us that life is so fragile and precious. Their collegiality and contributions to the legal profession will not be forgotten. With Covid numbers continuing to fall, the lifting of the lockdown looming, spring having sprung and Easter on the way – there is much to be positive about.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2020/2021

JOE O’MALLEY DSBA President

DIEGO GALLAGHER DSBA Vice President

MATTHEW KENNY Treasurer

PAUL RYAN Chair of Commercial Law Committee

JOAN DORAN Chair of Mental Health & Capacity Committee

GERARD O’CONNELL Chair of the Parchment Committee

AVRIL MANGAN Chair of Family Law & Minors Committee

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 Sharon Hughes T: 086 871 9600

SUSAN MARTIN Honorary Secretary

NIALL CAWLEY Programmes Director

KILLIAN O’REILLY Chair of Litigation Committee

RONAN McLOUGHLIN Chair of Property Law Committee

CIARA O’KENNEDY Chair of Employment Law Committee

TOM O’DWYER

JESSICA HICKEY

CIARA HALLINAN

The DSBA, 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 2021

Contents 6

Covid-19 Vaccinations in the Workplace Joanne Hyde sets out some essential considerations for employers when it comes to the vaccine

8

Beating Covid

12

Victory for Publicans

18

Once in a Lifetime

26

WRC Ruling on Remote Working

Kevin O’Higgins chats with the Parchment Editor John Geary about what was a gruelling few weeks

Pamela Fitzpatrick assesses the recent judgment of Mr. Justice McDonald in the FBD Business Interruption cases

Stuart Gilhooly cross-examines retiring Law Society Director General Ken Murphy

Covid-19 and Employment Contracts Ciara O’Kennedy looks at the employment landscape one year on from Covid-19

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Tax Matters Brian Broderick gives helpful tax tips to probate practitioners concerning Legal Personal Representatives

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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ONCE IN A LIFETIME KEN MURPHY

Ciaran Ahern examines a recent WRC case and explores the legal position on remote working

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The fact that I am still doing it 26 years later suggests it was a good fit for my skillsets and I never regretted it

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Spring 2021 dsba.ie

Contents

REGULAR FEATURES 01 04 60 63

Editor’s Note President’s Message In Practice News

06 34

Book Reviews

36

An Ardent Cause

42

Legal Test for Summons Renewal

Keith Walsh has spent some of the lockdown enjoying three legal books new to the market

Julie Doyle catches up with Solicitor and Senator – Catherine Ardagh

Audrey Byrne, Bébhinn Bollard and Sean Kehoe report on a Court of Appeal decision which confirmed the legal test for the renewal of a High Court summons

44

Land Development Agency Bill Godfrey Hogan reviews the Bill and gives us his insights

46

36

When can a Bank Deponent be Crossexamined in a Debt Case Stephanie Coughlan and Darryl Broderick consider the implications of a recent High Court judgment of Mr. Justice Simons

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Changes to Family Law

52

New Code of Practice on Workplace Bullying

Keith Walsh addresses some of the changes facing family lawyers at present

Seamus Given and Mary Heavey take a closer look at the key aspects of the new Code

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Message from the President

DSBA Work Continues Apace

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s we approach the Easter holidays, it still feels to most of us, that we are playing an interminable waiting game, desperate for signs of an end to this never-ending lockdown. Yet, despite the ubiquitous air of negativity that has pervaded throughout the last quarter, there is a real sense that our efforts and resilience have not been in vain and better times are within our reach. Meanwhile, the work of our Council and Committees has continued apace and in this message, I would like to briefly apprise you of the main aspects of work undertaken on behalf of our members over the last three months and our priorities and outlook for the ensuing period. The absence of professional and social events, which are the hallmark of the Association, have been a considerable drawback but despite this, we have continued to prepare and present excellent webinars on a range of important and insightful topics and this will continue over the next quarter. Your participation in these webinars, whether it is assisting in their delivery or attending as a guest, is a vital cog for the endurance of the Association and I want to assure you of our deepest appreciation for this support. Behind the scenes, we have, through the excellent work of our Committees, prepared and submitted representations to promote the interests of all of our members on various significant legal reform issues. We made submissions to the Department of Justice in relation to the Family Courts Bill and in connection with the Family Justice Oversight Group, details of which are outlined in this edition. We made submissions to the LSRA (Legal Services Regulatory Authority) in respect of Solicitors’ Advertising Regulations, Admissions Policies of Legal Professionals and we are in the course of making submissions in respect of professional indemnity renewal issues that continue to materially impact our members. We have made submissions to the Courts’ Services in respect of the reopening of the Four Courts consultation rooms, which contributed to their reopening at the end of last year. We have made representations to the Law Society of Ireland and policy makers

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in respect of negative interest rates and a useful update on this topic is included in this edition. Famously, Niebuhr asked God to grant him “the serenity to accept the things I cannot change, the courage to change the things I can and the wisdom to know the difference.” One thing we have painfully learned over the course of the last year is that we cannot change the circumstances of the pandemic and its restrictions on our personal and professional lives, but we can control our own feelings and our attitude to these circumstances which, somewhat like a parallel universe, affect people in very different ways. While some have lost a commute, others have lost family and friends, jobs and income sources. Conscious of the profound impact that the past year has had on all of us, professional wellbeing has never been more important for our own sake and also for our work colleagues and employees. It is vital that we all do what we can to facilitate and provide access to wellbeing supports and information and education on wellbeing, resilience and psychological health in our workplaces. This is not mere tokenism or a facility that is only within the reach of larger organisations with extensive budgets. There has never been more freely available support for these initiatives and there are no excuses for us not facilitating and providing access to these initiatives within our workplaces. I strongly recommend those of us who have not yet properly explored or implemented these initiatives for their workplaces to make this their ambition for

the next quarter. A good starting point is the Law Society of Ireland’s Professional Wellbeing Charter. This Charter and lots of helpful related materials are very usefully contained within the Law Society’s Wellness Hub on its website. Other expert institutions like the Royal College of Surgeons in Ireland is also providing freely available access to health, happiness and wellbeing webinars which are an excellent tool to promote in every legal practice. Solicitors will play a pivotal role in navigating and emerging from the crisis and it is essential that we equip ourselves and our colleagues and staff, not only in terms of the practical legal tools required but also in terms of enhancing and maintaining our wellbeing during the process. While the focus of firms will still be on productivity and profitability, that will need to be achieved in a different way to what we are used to. Greater flexibility and facilitation of wellbeing will be at the core of what employees expect and what employers are expected to provide. Clearly, there is no universal rule that can be applied across our varied and unique practices, but a common objective that can be shaped according to the needs of particular firms and individuals is the accommodation of flexibility and wellbeing in how we continue to deliver our expert professional services to clients. Beannachtaí na Cásca oraibh Joe O’Malley, DSBA President


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Covid-19 Vaccinations in the Workplace As the rollout of the Covid-19 vaccination programme is well underway, the hopes of a return to normal life and a return to work in the office may be on the horizon. Joanne Hyde sets out some essential considerations for employers when it comes to the vaccine

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he HSE is currently in the first phase of the vaccine rollout. People who are most at risk from Covid-19 will be the first to get the vaccine. It is thought that vaccines will become commercially available in the coming months. In light of these developments, employers should be aware of the implications of the vaccine rollout in the workplace and the challenges that may arise as a result. In this briefing, we will highlight the key considerations for employers and the possible legal issues surrounding the vaccine, from an employment perspective.

1) Can Employers Require Employees to be Vaccinated? At present, employers cannot require employees to be vaccinated. Unless the Irish Government legislates for compulsory vaccinations, employers should be very cautious about making the vaccine a requirement for employees. The Irish Constitution provides for a person’s fundamental personal right to bodily integrity (i.e. the right not to have your body or person unjustifiably interfered with) as well as the right to autonomy and privacy. Therefore, making a vaccine mandatory does not sit well with these core rights. However, once vaccinations are commenced for a larger number of the public, it is likely that the Government will guide employers to encourage employees to receive the vaccine on the basis that doing so will reduce health and safety risks at work. The Safety, Health and Welfare at Work Act 2005 obliges employers to carry out a risk assessment to 6 the Parchment

identify health and safety risks to people in their place of work, and take steps to remove or minimise any risks identified. Employers will therefore need to update their risk assessments as the vaccine becomes more widely available and have a contingency plan in place for a scenario where some, but not all, of their workforce are vaccinated. In situations where the employer assesses that a vaccine for all employees is necessary, it is highly unlikely that this will, in itself, be an adequate justification for mandating that employees receive the vaccine. However, the results of the risk assessment should be communicated to employees. Also, employers should, at the very least, be encouraging their staff to be vaccinated to reduce health and safety risks.

2) What Should an Employer do if an Employee Refuses to be Vaccinated? There are a number of reasons why employees might legitimately be unable to have a vaccine or may refuse it. Employers should be careful not to judge or stereotype an employee who refuses the vaccine. Anyone with significant allergies is advised against having the vaccine. Employees may also have medical conditions that could prevent them from being vaccinated. The Employment Equality Acts 1998-2015 provide for protection from discrimination on nine protected grounds, including on the grounds of disability, religion and age. If an employee refuses to take the vaccine, on grounds which are protected by the


Spring 2021 dsba.ie Joanne Hyde is a partner at Eversheds Sutherland. She is Head of Employment Law and Head of Commercial in the firm

Employment Equality Acts, and they are penalised as a result, they could take a discrimination claim against their employer. This could technically arise in circumstances where employees who have not received the vaccine are not permitted to return to the workplace but their colleagues who have received it are. Such employees could argue that they are being treated differently to their work colleagues because of their religious beliefs etc. It is important that employers continue to be flexible and monitor developments. In circumstances where an employee refuses to receive the vaccine, employers may consider alternative working arrangements, such as temporarily continuing to work from home or redeployment. Risks in relation to treating employees differently in this way should be assessed at the time in light of the then prevailing public health advice.

to ensure that any records are kept in accordance with GDPR and privacy laws. Employee privacy policies should also be reviewed and updated accordingly. The Data Protection Commission (the “DPC”) has recently published a guidance note on temperature testing in the workplace. The guidance noted that there was currently no public health advice recommending the implementation of mandatory temperature testing in the workplace (other than in healthcare settings). The guidance made it clear that an employer would need to be in a position to justify why the processing of this special category data is necessary for the purpose of mitigating against the risk identified in the employer’s risk assessment. The DPC may adopt a similar approach where an employer is seeking information on whether or not an employee has received the vaccine so employers should keep an eye out for such developments.

3) Can Employers ask Whether Employees have Received the Vaccine?

Next Steps for Employers

In order to control Covid-19 within the workplace, many employers will be eager to record employee participation in the vaccination process. This will create challenges for employers from a data protection perspective. As information regarding the vaccination process involves the processing of health data (which is “special category” data), particular considerations arise under the GDPR. It is likely that most employers will seek to rely on the processing of health data being necessary to comply with their legal obligation to ensure the health and safety of employees. Employers will therefore need

Covid/Employment

At present, we are still some time away from a vaccine becoming commercially available. The vaccination process within the workplace will need to be considered in the light of the circumstances and guidance existing at that time. It would be premature for employers to make any definitive decisions on their policies at this time. However, employers would be well advised to keep informed of any public health updates and Government guidance in this area. Employers should be aware of the various issues that may arise in the workplace as a result of the vaccine rollout and continue to be flexible in order to maintain a safe workplace. P

If an employee refuses to take the vaccine, on grounds which are protected by the Employment Equality Acts, and they are penalised as a result, they could take a discrimination claim against their employer

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Beating the Covid Battle With so many people across the country becoming ill with Covid over the past year, colleagues in the legal profession were not immune. Our own Parchment Editor John Geary was hit by the virus in January, resulting in a hospitalisation and was seriously ill. Kevin O’Higgins chats with the Mayo-based solicitor about what was a gruelling few weeks

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hen 44-year old John Geary sat down for his Christmas day dinner, little did he realise that within days he would be struck down with Covid and have to endure an extended stay at Mayo University

Hospital. “My wife Michelle and I had been very vigilant to avoid contact with family and friends over the festive break. We deliberately did not visit anyone nor did we have visitors to the house. But the virus had probably been picked up before Christmas,” recalls John. “I was in Dublin just pre Christmas for settlement talks in a case and aside from that, I did some shopping in Castlebar on Christmas Eve. I simply do not know where I caught it. I felt extremely ill on the 28th December and spent eight days unable to eat or drink.” John adds: “The symptoms were not typical to what most people experience with Covid. There was no temperature and no cough. Instead, it was like a truck had run over me. I ached from head to toe and was unable to keep any food or drink down. As a result, the dehydration was dreadful. Despite the excellent care provided by Michelle and my son William, I was getting no better.” The Castlebar-based practitioner is the Principal of J.V. Geary Solicitors – a five solicitor practice with

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a staff of ten. When his office was reopening after the Christmas break in early January, John had been diagnosed with Covid following a test taken at the famed football stadium that is MacHale Park, where the HSE operates a testing centre. “I remained at home, very unwell following the diagnosis of Covid. Each day I thought I would get better but instead, there was a continual deterioration. I then developed an acute pain on my right side and I began to find it very painful to breathe. I knew that it was very serious but was reluctant to present at the local A&E given the pressures all hospitals are under. However, in the middle of one particular night, my wife had to call for an ambulance as the pain was so excruciating and I knew I was in serious trouble.” John has been editor of this esteemed publication for the past 11 years. He took over as editor from Keith Walsh and previous editors include Stuart Gilhooly, Justin McKeena and yours truly. Having trained and worked as a solicitor in Dublin for many years, he moved back to his native County Mayo in 2010 and set up his practice. John trained with Matheson (or Matheson Ormsby Prentice as they were then known) and worked as an assistant solicitor at Margetson & Greene, Walsh Warren and DJ Synnott among others. John recounts what it was like at Mayo University Hospital with gratitude and appreciation. “I was


Spring 2021 dsba.ie Kevin O’Higgins is principal of Kevin O’Higgins Solicitors, Blackrock. He is a former President of the Law Society and DSBA

Interview

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Photography: Michael McLaughlin

It was very upsetting to see the local priest come in and give the last rites to these men and see that they had nobody in this world to hold their hand or talk to them in their last dying moments

processed through the Covid A&E initially and then put in a six-bed Covid ward. The relief of knowing that I was being medically cared for was almost overwhelming. Getting fluids and pain relief was a Godsend. The doctors, nurses and staff were tremendous but they were under so much pressure. “Due to the massive outbreak of Covid in January, the hospital was creaking at the seams. There had been a big outbreak in Belmullet and many people were in need of hospital care. After a few days and multiple scans, it seemed that the doctors were unable to stem the pain I was having in my right side and identify what was causing the ongoing problem. “Consultant Doctor Matshediso Mokoka then gave me a diagnosis of Covid pneumonia and within a couple of days of that, I began to feel much improved. It was very scary for a time, as I wasn’t sure what I had and despite painkillers, the pain had persisted and I wasn’t able to keep food down.” John, who is one of the leading members of what has become known over the past 30 years as The Lawyers Fishing Club of Ireland, described how the wonderful team at Mayo University Hospital had to cope at such a busy time. “The nurses were amazing. They were hit themselves with colleagues out sick with Covid or having to self isolate. As a result, they were down in numbers and the pressure fell on those there to do more than their fair share. Such was the pressure that on a few nights, we were getting our meds and vitals checked at 2am in the morning. This would usually happen around 9 or 10 at night but everything got pushed out. There were so many times that I wanted 10 the Parchment

something small – perhaps a glass of water or the like, but I did not want to press the buzzer to call one of the nurses as I knew that they were busy looking after someone sicker than me. One thing that I will always recall is the ‘Covid thirst’ I had. All of the Covid patients in the ward also seemed to have the same craving to drink water.” The death toll from Covid currently stands at a shocking 4,500+. John recounts how death came very close to his bed while in hospital. “There were only six beds in the Covid ward that I was in. Sadly, two elderly men died in beds opposite me. It was very upsetting to see the local priest come in and give the last rites to these men and see that they had nobody in this world to hold their hand or talk to them in their last dying moments. Their families were unable to visit the hospital and it must have been so lonesome and heart breaking for them. “That was the hardest part of being hospitalised – seeing that. In circumstances like that, a family member ought to be allowed in to sit with their loved one as they approached the end – Covid or no Covid. The upset that the family then experiences knowing that their father or grandfather is all alone must be horrendous.” John tells me about the man in the next bed who came to the ward on the day that his wife had died at home from Covid. “He was naturally very distraught and deeply upset. I chatted with him quite a bit that day and for the rest of my stay. We formed a lovely friendship. He told me afterwards that at his lowest, my presence in the ward that day was like an angel


Spring 2021 dsba.ie

Interview

from heaven and the kindness, empathy and support bestowed to him would never be forgotten. I was so glad to have been in the right place at the right time – as strange as that may seem.” So how does a busy practitioner with a staff of ten manage to run an office when he gets struck down with Covid pneumonia? The answer is, he doesn’t. John explains. “I was completely off the radar for the month of January and well into February as the recovery process took a lot longer than anticipated. I would not have been able to keep my practice going were it not for my great team. Two of the solicitors went out on maternity leave in October and December respectively. So we were down from five to three. “Thankfully, I had recruited a locum solicitor before Christmas and she had just started with me, so there were three of the most competent and able solicitors running my practice that you would find either west, or east of the River Shannon. They deserve huge praise and a special mention. Without Ita Feeney, Aoife Cawley and Elizabeth Gallagher I would have been up the creek without a paddle. They just took over and kept the ‘show on the road’. I am deeply grateful to them and my two secretaries Bernadette Tarpey and Finula White; and my two legal executives Aishling Ring and Gillian Donlon for all they did for me. I am back working remotely for the past few weeks and it is great to be back. It helps too to have some understanding clients who have allowed me the time out and to catch up with my work.” John, who is a former Chairman of the DSBA Litigation Committee, raises a very valid point – what

if a sole practitioner with none of the supports he had, fell ill? “It must be impossible for a sole practitioner with none of the supports to fall ill and be knocked out of practice for several weeks. I’m sure this has happened to some colleagues around the country during the Covid pandemic and I just do not know how they deal with such an absence from work. Thankfully Covid doesn’t affect most people like it did me, but some colleagues will have been struck down.” John’s heart goes out to those of our colleagues who have lost family to this disease and, of course to the colleagues from both the Bar and the solicitor’s profession who have been struck down by Covid and some fatally. Now still recovering at his home on the edge of Clew Bay, just outside the town of Westport, John is likenever-before appreciating the simple things in life – fresh air, walks, spending time at home and being well again. “It was a big scare and it’s marvellous to come out the other side of it and tell the tale. Sadly so many have not. I owe my deepest gratitude to my wife Michelle and my 10-year old son William (who miraculously escaped Covid) for all their love, care and attention. I particularly owe a huge debt to the staff of Mayo University Hospital. Staff on the frontline have been hailed all year for their invaluable service to the people of Ireland. However, you do not really fully appreciate that until you see their work and indeed conditions, up close. They deserve to be recognised with the highest commendation after we eventually banish Covid for good – which I hope will be in the near future.” P the Parchment 11


Victory for the Publicans Pamela Fitzpatrick assesses the recent judgment of Mr. Justice McDonald in the FBD Business Interruption cases

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he Commercial Court has delivered its judgment in four test cases taken by publicans against FBD Insurance plc (“FBD”). The judgment was originally due to be delivered on the 15th January 2021, however this was deferred to allow the parties make legal submissions following the UK Supreme Court’s judgment in a similar test case, which was also delivered on 15th January. The eagerly awaited decision is of great significance to insurance companies and businesses throughout the country.

Background The four test cases were taken by Hyper Trust Limited trading as the Leopardstown Inn; Aberken, trading as Sinnotts Bar; Inn on Hibernian Way Ltd trading as Lemon & Duke; and Leinster Overview Concepts Ltd trading as Sean’s Bar (the “Publicans”). Each of the Publicans hold policies of publican insurance with FBD (the “Policy”), which include business interruption insurance. They brought proceedings having been told by FBD that the losses the Publicans had experienced as a result of Covid-19 were not covered by the Policy. The principal question for the Court to consider in each of the four cases was whether FBD was obliged to cover any of the losses suffered by the Publicans following the closure of public houses in accordance 12 the Parchment

with Government guidelines on the 15th March 2020. The central dispute between the parties related to the interpretation of a clause in the Policy which stated that FBD would indemnify the Publicans for losses arising from the imposed closure of the premises by order of a government or local authority. In that regard, the Policy contained specific terms, which included, “as a result of the business being affected by imposed closure of the premises by order of the local or government authority following outbreaks of contagious or infectious diseases on the premises or within 25 miles”. FBD declined cover in respect of each of the Publican’s losses on the grounds that the imposed closure did not arise on foot of an outbreak of Covid-19 on any of the Publicans’ premises or within a 25-mile radius of the premises. FBD accepted that there was an imposed Government closure but that this closure could not be causatively linked to an outbreak of Covid-19 which occurred within a 25-mile radius of the Publicans’ premises.

What is the Insured Peril? The Court in its judgment advised that during the course of the proceedings, the parties used the word “peril” as shorthand for the nature of the risk covered by the insurance policy. The Court was asked to consider the nature and extent of the insured peril. FBD submitted that the relevant peril was simply


Spring 2021 dsba.ie Pamela Fitzpatrick is a solicitor in the Commercial and Business Team at Hayes Solicitors

the “imposed closure” of the Publicans’ premises. On the other hand, the Publicans maintained that the relevant peril was a composite one involving all of the integral elements of the disputed insurance policy clause, namely that the business was affected by (a) imposed closure (b) by order of a local or government authority, following (c) an outbreak of infectious disease on the premises or within a 25 mile radius. The Court stated that instead of breaking up the clause and accepting that the nature of the peril was the imposed closure as suggested by FBD, the clause must be read as a whole and the words “imposed closure” could not be considered to be the relevant peril on their own. The Court further stated that this is how a reasonable person standing in the shoes of the parties to the proceedings would interpret the relevant clause. The Court found, inter alia, that the relevant peril was as put forward by the Publicans and it could not see any basis how the geographic limit could be excluded from the description of the peril. The Court then undertook a detailed review of the meaning of specific words within the relevant disputed clause. The Court reviewed the meaning of the words “following”, “by” and “outbreak”. The Court found, inter alia, that the relevant clause relates

Insurance Litigation

to business interruption claims where that business interruption was shown to have been proximately caused by a government imposed closure which, in turn, has had as one of its causes, an outbreak of an infectious or contagious disease within 25 miles of the insured public house premises. The Court further held that it is not necessary for the insured to also establish that the outbreak was the proximate cause of the imposed closure so long as the outbreak was a cause.

Causation The case raised a number of issues in relation to causation. FBD argued, inter alia, that the Publicans’ losses would have occurred in any event even in the absence of the occurrence of the insured peril. FBD maintained that the “loss or damage” was confined to loss or damage caused by the insured event and that the imposed closure of the Publicans’ premises could not be said to cause loss or damage affecting the results of the business of any of the public houses in question subsequent to their re-opening. FBD submitted that, once the imposed closures ceased, any loss suffered thereafter was attributable to the ongoing effects of Covid-19 which was not insured under the policy. The Court accepted FBD’s contention that a “but for” test usually applies in determining whether the losses claimed by an insured under a policy of insurance

The Court found, inter alia, that the relevant peril was as put forward by the Publicans and it could not see any basis how the geographic limit could be excluded from the description of the peril the Parchment 13


The Court further stated that in the absence of clear language to the contrary, it would go against the nature of an insurance policy as a contract of indemnity, to allow the effects of the insured peril to reduce the payment to be made to an insured who has the benefit of cover for that peril

are caused by the insured peril. However, the Court also accepted that there are certain instances which give rise to a relaxation and modification of the “but for” test. The Court found that where there are overlapping proximate causes of the losses, one of which in the case was the composite peril and the other being the alteration of societal behaviour in response to Covid-19, it was appropriate to modify the “but for” test. The Court found that where a loss is sustained as a result of two or more interrelated events which are each capable of causing the loss but where it is not possible to say that, but for any one of them, the loss would not have been incurred, it would be inappropriate not to modify the “but for” test in this instance where the common thread between the peril on the one hand and societal reaction on the other is the presence of Covid-19.

Trends and Circumstances Part of the dispute between the parties related to whether the fall-off in sales suffered by the Publicans in the days preceding the Government-imposed closure on 15 March 2020, constituted a trend or circumstance that should be carried forward into the period of closure i.e. whether those losses should be assumed to continue throughout that period. The Publicans accepted that, to the extent that they suffered a drop in sales in the days immediately prior to the 15th March 2020, that should be taken into account when calculating the takings during the twelve months immediately before the date of damage. The Publicans also accepted that the insured peril did not occur until the 15th March 2020 when the imposed closure was announced. However, the Publicans maintained that once the insured peril occurred, it would be contrary to principle if any element of the insured peril was to be taken into account in adjusting the amount of the payment to be made by FBD under the insurance policy. FBD maintained that, under the “trends and circumstances” provisions of the insurance policy, any trends and circumstances affecting the business prior to the occurrence of the insured peril on the 15th March 2020, are to be taken into account in adjusting the amount to be paid, even if they are ultimately part of the composite insured peril. The Court rejected this approach and found that in applying the “trends and circumstances” provisions of the insurance policy, one must exclude the effects of the insured peril from the calculation. The Court further stated that in the absence of clear language to the contrary, it would go against the nature of an insurance policy as a contract of indemnity, to allow the effects of the insured peril to reduce the payment to be made to an insured who has the benefit of cover for that peril.

The Indemnity Period The Court rejected a claim by the Publicans’ that they were entitled to maintain a claim against FBD for the continuing effects of the Covid-19 pandemic on their businesses even after any period of imposed closure comes to an end. However, the Court held that to the extent that the Publicans can show their businesses continue to be affected by the composite 14 the Parchment

peril after the period of imposed closure comes to an end, they are entitled to be indemnified for those losses until the losses cease or the indemnity period comes to an end (whichever is the earlier).

Lemon & Duke The circumstances in which Lemon & Duke’s policy was put in place was quite different to the other Publicans. Unlike the other Publicans, the Lemon & Duke policy was put in place after the threat posed by Covid-19 first emerged. Furthermore, Lemon & Duke maintained that its policy was also put in place following the making of a specific representation in relation to the business interruption cover available under the Policy. On foot of its differentiating circumstances, Lemon & Duke made an additional claim for misrepresentation and for aggravated damages. The Court rejected this claim on the grounds that, inter alia, the conduct of FBD did not approach the standard which would justify an award of aggravated damages. The Court also noted that although a claim for damages was pleaded in the summons and statement of claim, Counsel for Lemon & Duke did not raise the issue before the Court until delivery of its written closing submissions immediately prior to the closing oral submissions.

Conclusion While the Court’s judgment is certainly a victory for the Publicans, the issue as to the quantum of the losses covered by the Publicans’ policies is due to be addressed at a later stage. This will include the question of whether the Publicans’ claimed losses were proximately caused by the composite peril. In simple terms, that means that the Court will consider whether the closures following the outbreaks of Covid-19 were an effective (i.e. proximate) cause of some of the claimed losses. Furthermore, the Court still has to consider the concept of disaggregation at the quantum hearing. FBD maintained that, when looking at what would have been the position of the Publicans’ businesses but for the occurrence of the insured peril, their businesses would have been severely impacted by the requirement for physical distancing and by a fear among the population about the risk of contracting Covid-19. In contrast, the Publicans argued that it would simply be impossible to disaggregate the losses in that way. Ultimately, the Court found that the Publicans’ Policy covers losses caused to their businesses on foot of Covid-19. This decision will be of great importance to many policy holders throughout the country and it will allow them to recover for losses caused to their businesses following the imposed closures in accordance with Government guidelines on 15 March 2020. In addition, the quantum hearing will provide further clarity and guidance to affected parties. Irish insurers and policy holders will no doubt be reviewing their policy wordings in light of the decision and the cost implication for insurers is likely to be significant. The extent of these cost implications will become clearer following the quantum hearing. P


Spring 2021 dsba.ie Mark Kelly is an associate solicitor at Fieldfisher working primarily in litigation and employment-related disputes

Litigation

Discovery of CCTV in Litigation Proceedings Mark Kelly examines the recent High Court decision of Mr. Justice Barr in Dudgeon v Supermacs Ireland Ltd., [2020] IEHC 600 which has prompted discussion around access requests under Article 15 of the GDPR and Section 91 of the Data Protection Act 2018

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ustice Barr held in this case that Supermacs was not obliged to disclose CCTV recordings of an incident to a person identifiable on the recording and who claimed damages for injuries resulting from that incident.

Facts of the Case An appeal was brought to the High Court by the Plaintiff against the refusal of Groarke J. in the Circuit Court of an application for discovery of the CCTV recording taken at the Supermacs premises in Galway on 6 January 2017. The Plaintiff ordered food and “sat on a chair which broke, resulting in her falling to the ground and as a consequence whereof she sustained personal injuries, loss, damage, inconvenience and expense, which are ongoing.” Supermacs admitted that the chair was defective, but denied that the Plaintiff had “fallen to the ground” as a result of the defect in the chair. This was a central feature of the mechanics of the accident and alleged injuries. Proceedings issued in the Circuit Court and voluntary discovery was sought from Supermacs, to include the CCTV of the incident. Before Mr Justice Barr, it was submitted on behalf of the Plaintiff that CCTV footage represents the best evidence that can be obtained in relation to the happening of an event, as it records what took place in real time, at the relevant time. The Plaintiff relied on the decision in McNamara v Dunnes Stores (Parkway) LTD [2017] IEHC 172, where Murphy J. concluded that CCTV footage depicting an incident that took place in a supermarket was “crucial” in determining whether the incident amounted to defamation. Supermacs submitted that discovery of the CCTV footage was only being sought on behalf of the Plaintiff to verify her recollection of the alleged incident and to essentially “mend her hand” before giving evidence at the trial. It was submitted that was not a proper purpose for which discovery ought to be ordered against Supermacs. In his decision, Mr Justice Barr questioned the true purpose of the Plaintiff obtaining the CCTV footage

of the incident and was satisfied that the discovery was only being sought to verify the Plaintiff ’s assertion that she fell to the ground. The application was refused on that basis.

Discovery v. Access Requests – What to take from this Judgment Mr Justice Barr’s decision is focused on the law concerning discovery and is not related to data protection rights and the right to request access to personal data. Data controllers remain obliged to fulfil access requests in relation to CCTV footage, unless subject to a restriction under the GDPR or relevant data protection legislation. This decision does not materially affect the right to access such CCTV. It merely clarifies that such access needs to be sought in the right forum and in the right context / purpose. Commenting on the Supermacs decision, the Data Protection Commission stated that it “will continue to support data subjects and controllers in giving effect to all aspects of data protection law in this respect”. P the Parchment 15


Obituary

Mary MacNeill - A Tribute

Mary was one of a kind. A wonderful, warm person who enjoyed good company and a little bit of mischief

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he legal community was greatly saddened with news of the passing of Mary MacNeill on the 20th December 2020. Mary was a solicitor with Cullen & Co. Solicitors in Inchicore and was a vibrant and wonderful colleague. A proud Mayo woman, Mary’s late father Brian (Barney) was a member of an Garda Síochána and was stationed in Ballinrobe throughout the sixties. He miraculously avoided death in early October 1972 during a visit with his mother in Clones when a nearby bomb exploded. However, he was tragically killed subsequently whilst in the line of duty a week later. As Mary was the eldest of seven, responsibility fell to her to help her mother raise the family. They later moved to live in County Monaghan. Mary started out as a secretary with George Knight and Co in Clones. As her career progressed, she moved to Dublin where she commenced working with Colm Gaynor of Gaynor & Co – an employment relationship that was forged over the following three decades. Mary decided in later years to study to become a solicitor and she did her apprenticeship with Colm Gaynor and qualified as a solicitor. Sadly, Mary was diagnosed with a terminal illness in the summer of 2020. She bravely fought the illness and whilst she responded very well to treatment, it sadly was too late. She had less than six months from diagnosis to her passing. Mary had so much more life to live – people to meet and places to go. It wasn’t to be, unfortunately. Colm Gaynor, a Consultant now with Margetson & Greene Solicitors said of Mary: “It was a privilege to have known and worked with the late Mary MacNeill for more than 30 years. Mary’s integrity, diligence, common sense and good humour were renowned. Her faith and courage during her illness was to be expected. I was greatly saddened by Mary’s death as were my family and colleagues at Baggot Street.” In 2005, Mary joined Mary Cullen in Inchicore. “Mary loved law and being a solicitor. She always spoke about her father as a person who upheld the finest traditions of An Garda Síochána and I think Mary applied this to her professional life as a solicitor,” said Mary Cullen. “Following on her father’s example, she was a great believer in justice and fairness and saw the pursuit of these standards as pivotal and central to the role of the solicitor. Nothing pleased Mary more than a David –vGoliath situation and in these situations she would

never be found wanting. Once she took on a case, she became fully committed to the resolution of the case and could be a true force of nature in such pursuit. “Mary was an excellent negotiator and again, would pursue negotiations to the Nth degree, while at the same time being utterly pragmatic. In dealing with colleagues, Mary set the highest standards for herself, and in return very much expected the same from her colleagues. “It was a great shock to us all here when Mary was diagnosed as terminally ill last July. However, again as testimony to her love of the profession, following her diagnosis she again requested that files would be given to her, so she could carry out some work while ill at home. She will be very sadly missed.” John Geary, editor of the Parchment first got to know Mary while working at Margetson & Greene. “Mary was one of a kind. A wonderful, warm person who enjoyed good company and a little bit of mischief. She is such a tremendous loss to her family and friends and to the legal profession. I was very sad to hear of her passing. We had spoken a few months before her death and she was her amazing self – upbeat, positive and cracking jokes. She regaled stories of great former colleagues like Val Timon, John Darley and Jean Cullen. Mary was a ‘different class’ – she had everyone’s respect; she had integrity in spades and she made a great impression on people. Ar dheis Dé go raibh a hanam.” P


Spring 2021 dsba.ie Rachel Turner is a partner in Litigation and Dispute Resolution at Dillon Eustace

Insurance Litigation

Can Insurers Refuse Cover for late Notification? Rachel Turner reviews the recent High Court case of Moloney v Cashel Taverns Limited (In Voluntary Liquidation) & Anor (10 December 2020)

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he High Court held that an insurance company was justified in refusing indemnity to its insured where the insured was fully aware of the incident giving rise to the claim but failed to promptly notify them.

Background The plaintiff suffered an accident at work while working for Cashel Taverns Limited (“the insured”), injuring her ankle and shoulder. The plaintiff initially brought proceedings against the insured only and was awarded general damages in the sum of €35,000 and special damages in the sum of €2,332. However, as the insured was subsequently put into voluntary liquidation, the plaintiff applied to join the insurers of the insured as a co-defendant to the proceedings pursuant to section 62 of the Civil Liability Act 1961. The insurance company had not been notified of the incident giving rise to the claim until some 17 months after it happened (the insured only notified the insurance company when the “letter before action” was received by it) and made it clear, from the outset, that it was reserving its rights under the insurance policy. After its investigations, the insurance company advised the insured that it would not be providing an indemnity in relation to the claim. The insurance company contended in the High Court that it was entitled to repudiate liability and that it had validly refused to indemnify the claim. The High Court was asked to determine if the insurance company was obliged to pay the damages awarded to the plaintiff in the initial proceedings.

High Court The High Court (Heslin J.) found that the insurance policy placed a clear obligation on the insured to notify claims promptly and the facts before the court showed that the insured failed to do so. The insured argued that knowledge of the incident was held by the manager, as opposed to a director of the company, and that as a “manager” was defined as an “employee” in the policy, the manager’s knowledge of the incident did not constitute knowledge on the

part of the insured. The Judge rejected this on the basis that the policy does not refer to whom, within the insured, must possess the knowledge and held that the only reasonable interpretation of the policy was that the insured was obliged to notify insurers of the incident promptly once it became aware of it. The Judge viewed the fact that the insured had been dealing with PIAB (Personal Injuries Assessment Board) in relation to the claim, and had made decisions at various points without reference to the insurance company, as evidence that the insured knew it did not have insurance cover for the accident. Accordingly, the court found that the insurance company was entitled to repudiate liability and the plaintiff ’s claim against it was dismissed.

Comment It was stated to be common case between the parties in the above matter that it was not necessary for the insurance company to prove that it had suffered prejudice in order to refuse indemnity on the basis of late notification, albeit the court noted that it was clear from the evidence that the insurance company regarded itself as having suffered prejudice arising from late notification. It is worth noting that since the events giving rise to this case took place, the majority of the provisions of the Consumer Insurance Contracts Act 2019 (“the act”) were commenced with effect from 1 September 2020. Section 16(3) of the act now provides that where non-compliance by a consumer (which includes a small business) with a specified notification period does not prejudice the insurer, the insurer shall not be entitled to refuse liability under the claim on that basis alone. Further, section 21 of the act now provides that third parties can claim directly against an insurer in circumstances where the insured is deceased, cannot be found, is insolvent, or where the court believes it is just and equitable for them to do so. The act makes clear, however, that the insurer has the same defences to an action brought by the third party as the insurer would have in an action by the person. P

Section 16(3) of the act now provides that where noncompliance by a consumer (which includes a small business) with a specified notification period does not prejudice the insurer, the insurer shall not be entitled to refuse liability under the claim on that basis alone

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Spring 2021 dsba.ie Stuart Gilhooly is a partner at H.J. Ward & Co. Solicitors. He is a former President of the DSBA and former President of the Law Society

Cross Examination

Once in a Lifetime

There are few names more recognisable in the legal profession than Ken Murphy. The ubiquitous Director General of the Law Society has been in position for 26 years but as his 65th birthday approaches, he is leaving the institution he has made his own. Former Law Society President Stuart Gilhooly, who has worked with Murphy for nearly all of this time, met him as he contemplates his legacy and his future

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y 2013, many Manchester United fans had reached their thirties without knowing any other manager than Alex Ferguson. 26 years of success came to an abrupt end when he finally stepped off the stage to be replaced by David Moyes. Although it is coincidental that Ken Murphy’s stewardship of the Law Society covers the same time span and while there were fewer trophies, there are also parallels. Many solicitors – including me, I qualified the same year he took over – will never have known another leader of the profession. Ken Murphy has become has become the voice and the face of the Society, meaning his impending departure will leave a hole not easily filled. Let’s hope his successor lasts longer than David Moyes and we don’t end up with Ryan Giggs running the Law Society. When his retirement was announced in December, it came as a shock. Although I knew his 65th birthday was coming on 22 March, like most others involved in the Law Society, I believed he would seek an extension for at least another two years. But the effects of the last twelve months, which has taken its toll on everyone, didn’t spare even the phlegmatic Murphy. The joy

Every aspect has been contentious. The defence interests have always campaigned against the public interest

had gone out of the job and he had just had enough. Walking into Blackhall Place to interview my friend and mentor, the setting has an eerie quality. The car park is empty and most of the staff are working from home. I walk down the main corridor of the ancient building and the beautiful stone flooring carries the echo of my footsteps as ugly yellow signs divide the thoroughfare into directional lanes. I’ve tread this path hundreds of times and knocked on his office door for the last 20 years but there is a poignancy to the last time. The door is locked as usual and Murphy greets me with a smile, dressed as always in a suit and tie. Nowhere to go and no one to meet but old habits die hard.

A Fortunate Wind that Blew me Here His office is, let’s be kind, lived in. 26 years of memories are visually contained in Council books, old Gazettes and tapes or videos of his many media appearances. The chair and desk date from the days of his predecessor, Noel Ryan and are an odd sight in the office of a high-level executive. The chair in particular is a relic. Tatty doesn’t do it justice. Fleathe Parchment 19


The face-to-face engagement with colleagues is a powerful source of strength for the DG and the President. To hear, to debate and not just talk to them but listen. I have often come back to the office and shifted my position based on what I heard ridden maybe does. But he is a man who believes in tradition and isn’t driven by show or ostentation so counter-intuitively it fits. We adjourn to the Council chamber where the table is bare and two chairs are distanced six feet apart. Although we are alone, the ghosts of former presidents linger. Portraits of William Hayes, Peter Prentice and Moya Quinlan look down on us with enquiring eyes and the newly arrived painting of the first solicitor High Court judge, Michael Peart, provides a welcome reminder of the progress made. We have spent many occasions here debating the issues of the day with a full council and it feels incongruous that Murphy’s last meeting on 19 March will take place with just he and the President in this august room while the rest of us watch on a computer. A council member since November 1983, he was elected twelve times to the Council 20 the Parchment

(the whole council was up for election every year in those days) before taking on the role of Director General on 13 March 1995. Over that 37 year period, he attended 370 consecutive council meetings, creating an institutional memory unparalleled in the history of the profession. His memories of those early council meetings in the 1980s are amusing. “The Council would meet at 2.15 on a Thursday. The meeting would be held after a good lunch. There was a big debate about smoking in the council chamber. At 3.00, you were allowed to smoke so Paddy Glynn would take out a large cigar at that point and others would begin puffing away. It was a very different era. We moved to Friday morning meetings in the 1990s.”

Fate Goes ever as Fate Must Murphy was a partner in A & L Goodbody

at this stage, based in Brussels for a lot of this period. When he returned to Ireland, the job of Director General surprisingly became available. Noel Ryan, who had been in the position since 1990, suddenly left to follow his passion by taking over at the Irish Horse Racing Authority. Was it a sudden decision to leave the comfort and certainty of partnership in a large firm? “I decided quickly but not on a whim. I’d been elected to the Council twelve times and was five years away from the presidency. I was one of 32 partners in A & L Goodbody but there was only one director general. The fact that I am still doing it 26 years later suggests it was a good fit for my skillsets and I never regretted it.” Murphy was interviewed by Law Society grandees Tom Shaw, Frank Daly, Laurence Shields and the President at the time, Paddy Glynn. As he points out smiling “gender balance wasn’t an issue in those days”. The interviews took place in Price Waterhouse Coopers, home of the recruitment consultant, Tom O’Higgins. His two most immediate predecessors, Noel Ryan and Jim Ivors, had public service backgrounds and he reveals that his rivals for the position were mainly from that area. However, Murphy feels his interviewers wanted a solicitor and he ticked the boxes.


Spring 2021 dsba.ie

Cross Examination

Photography: Cian Redmond

His large firm background was helpful but they had seen him in action in recent reviews of both the education and the regulation departments. He was the current chairman of the Education Committee and following his second interview, he received the call he had been hoping for. “Paddy Glynn, in his inimitable fashion, said ‘Ken I think I will have to find a new Chairman of Education.’ That was how I found out I had the job.”

Ken Murphy at a glance

Steadfast Companions will Stand by him He hit the ground running and set up a management team. It didn’t initially include his sidekick and partner in crime, Mary Keane. “She was the secretary to the Council when I arrived. It became clear to me how bright and extremely able she was. We had a review group and one of the recommendations was that we would have a deputy director general and she, along with PJ Connolly, jointly took up that role. We have very different skillsets. We have made a great team. I have the height of regard for her. She is one of the most able people I have ever worked with anywhere. She is just superb. I am more of a big picture person, she gets stuff done, grinding out the detail. And the combination of the two has proved powerful and effective. She would have made a great director general if she was interested which she clearly wasn’t. We were also very lucky to have such a strong and capable management team.” Mary Keane is the yin to Ken Murphy’s yang and while their personalities could not be more different, the contrast works. She will briefly take on his mantle until Murphy’s successor is in situ. His 26 years has been a rollercoaster ride with no shortage of crises and major changes. From the army deafness controversy to the introduction of Personal Injuries Assessment Board and culminating in the recent damages debate, personal injuries has always been to the fore in the public consciousness. “Every aspect has been contentious. The defence interests have always campaigned against the public interest. Don’t forget juries were abolished in 1988, it goes back that far.” PIAB, driven by Mary Harney, was a major change and this was where Ken Murphy and I first forged a partnership as the only public voice for the accident victim. “I knew Mary Harney for years. She was an old friend but there was no stopping her on this. And Dorothea Dowling, a media phenomenon, meant the combination was irresistible. I sat in at the Oireachtas debate and Mary Harney accepted no amendments.

FAMILY DETAILS Married for 32 years to Yvonne Chapman, who is retiring from her role as a language teacher in St Andrew’s College in the same week as I retire. Our three children are Gavin (a solicitor), Rebecca (a trainee solicitor) and, to show the family has some imagination, Charlotte who is a doctor. POETRY OR PROSE? Both. And maybe I’ll now have time to write. In the words of my hero, the late Seamus Heaney (whose mobile number I will never delete) ‘I rhyme, to see myself, to set the darkness echoing’. RUGBY OR SOCCER? Again both with an equal passion. I attended my first

We were dealing with a juggernaut at that stage.”

Defiance is Actually part of the Lyric job Murphy is remarkably equable. In 25 years of knowing him, I’ve never seen him stressed or angry. This would appear to be his default setting but even he must have found the Redress Board controversy of 2005 a little disconcerting. “It was certainly a crisis. Shortly after it

internationals in both codes when I was 11 years old and I’ve missed very few Ireland home matches since. LENNON OR MCCARTNEY? Controversially I prefer Paul as the greater genius and more attractive personality. Last year in lockdown I completed Philip Norman’s marvellous 850-page biography of McCartney. TIGER KING OR THE CROWN? Tough one but as I prefer to see the red-in-tooth-andclaw depiction of wild beasts savaging each other it has to be the Crown. WHAT ELSE ARE YOU WATCHING ON NETFLIX? Currently the family and I are deep into series 5 of How to Get Away with Murder.

broke, I did Morning Ireland, the Six One news and Prime Time on the same day. It was intense fire. We had to immediately investigate but the allegations had to be based on evidence. When we had a team of staff in place, I had the idea of getting the TV news to film it. Then, of course, due process had to be followed. We weren’t naming any names and it turned out that there had been some overcharging but very few cases in terms of those involved in the process.” the Parchment 21


As the controversy raged on, he set about rebalancing the argument towards its members. “I remember going on Questions and Answers and pointing out that Irish society had consigned these people to hell-holes and it was solicitors who took the cases and forced the State to set up the Redress Board. I thought that helped to put it in a different context.” Murphy received a lot of support for the Society’s stance on his visits to local Bar Associations. The President of the day and the DG visit between 12 and 14 Bar Associations per year. I personally attended 20 with him and marvelled at his extraordinary ability to treat each one as if it was the first time he had been and to recount his updates in precisely the same enthusiastic manner each time. It is a skill possessed by very few and will be sorely missed when visits are permitted once more. “I enjoy Bar Association meetings. I estimate I have attended 350 in total during my time. The face-to-face engagement with colleagues is a powerful source of strength for the DG and the President. To hear, to debate and not just talk to them but listen. I have often come back to the office and shifted my position based on what I heard.” At the other end of the spectrum, large firms have become more important and influential as the years have progressed so finding a way to hear their views was equally important. “I was instrumental in starting visits to the managing partners of the large firms and also made a point of inviting them and some of their other partners to dinner in the President’s suite where we would discuss matters of mutual interest.” His experience with his international

Ken Murphy and the late great Seamus Heaney sharing a moment at Blackhall Place

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counterparts has taught him much but one view from abroad rings particularly true. “I came to realise that everywhere the Bar is seen by large firms as representing small firms and small firms as representing large firms. It is not unique to Ireland.” Losing 37 years of institutional experience will be a challenge for the Law Society. Having finally shed much of its regulatory role, Murphy’s successor will find an organisation and profession that is adapting, like so many others, to a pandemic restricted world. What advice would he have and is being a solicitor a significant advantage? “Someone who is not a solicitor will have a steeper learning curve, to learn the culture of the organisation and the profession. I think it was a great strength for me to be a solicitor.”

If you Have the Words Ken Murphy became the voice of the profession and was always at ease in front of a camera or microphone. The next Director General may not have the same skillset or may feel different voices, such as the President of the day, are preferable. Murphy has strong views on the subject. “The profession doesn’t care who the spokesperson is. It cares about how well it is done. It should be done articulately and persuasively. It is a subtle skill learned with time. The more often you do it, the better you get. If you get a President coming in with no background or aptitude in media, you could get disasters. Asking a President, who changes from year to year, is an amateur approach.” Whoever takes over won’t have Ken Murphy flattening their learning curve or looking over their shoulder, depending on your point of view. He will leave the building

for the last time on 22 March and won’t look back. He doesn’t do regrets or harbour grudges. “The only regret I have is that I didn’t leave a year ago. The last year has been fairly joyless. In general, I’m future focussed and positive and I think happier people are.” What does the future hold for a man loves his job and has been involved in the Law Society for so long? Like almost any question Murphy is asked, the answer is sanguine.

The Squat Pen Rests “I have had a couple of approaches so far, I will choose to do what interests me and what I want to do. Eugene McCague [an old college friend] keeps talking to me about doing memoirs. I will be reading and writing. I loved literature before I loved the law. The only downside is the absence of travel at the moment. Yvonne [his wife] and I would like to live part of the year in France when that is possible. I’m never bored. There are lots of things that interest me and we still have two kids living at home.” Murphy’s appetite for legal politics will be sated by his continuing involvement with the International Bar Association where he is vice chair of the Bar Issues Committee and the Policy Committee. He is a man who never saw a camera he didn’t like and there are many photographs of him over his long association with the Society. What many remark on, and is undeniable, is how little Ken Murphy has changed. He doesn’t look his age, or anything close to it, while his hair remains the same colour and style it has been for 40 years. Slowing down, tending to the garden will not keep this retiree busy. He is a man of huge energy and no little wisdom. I remember he once explained to me that the most important part of his job was judgment and it is a commodity that is often underrated. In the time I have known Murphy, he has never let his profession or employer down. As an outside-the-box thinker and strategist, he has few peers. His replacement will no doubt bring a fresh pair of eyes and new ideas but following a man who embodied the profession for so long is a big undertaking. After the interview ends, we stand and shoot the breeze, looking out over the football pitch. There are no students, no staff and no noise, just the rustling branches reminding us of the changing of the season. Presidents come and go. We have kidded ourselves that we made a difference. Ken Murphy actually did. The sun is coming out again after a long winter but there is a large shadow cast over Blackhall Place. P


Spring 2021 dsba.ie Jamie Fitzmaurice is a partner and Elaine Bellew is a Senior Associate in the Real Estate Law Team at Mason Hayes & Curran

Property

New Property Regulations The Property Services (Regulation) Act 2011 (Minimum Standards) Regulations 2020 came into effect on the 30th November 2020 and requires licensed property services providers (LPSPs) to adhere to additional minimum standards. Jamie Fitzmaurice and Elaine Bellew review these new standards and set out the implications for LPSPs Background – The Property Services Regulatory Authority and the Pre-Existing Regulations The Property Services Regulatory Authority (PSRA) is the body responsible for the licensing, supervision and regulation of all LPSPs in Ireland. Subject to limited exemptions, only persons holding a licence issued from the PSRA under the Property Services (Regulation) Act 2011 may provide property services. A property service is (a) the auction of property other than land (b) the purchase or sale of land (c) the letting of land or (d) property management services. The Regulations apply to any ‘property service’ offered by LPSPs, if they are provided for ‘consideration’, i.e. some form of payment or compensation. In order to come within the remit of the Regulations, the property service must be provided within Ireland although the property itself may be located outside of Ireland. The pre-existing regulations were designed to ensure that LPSPs have the necessary qualifications, are of good character, good financial standing and hold appropriate professional indemnity insurance.

The 2020 Regulations – Obligations The 2020 Regulations further build upon these minimum standards to ensure transparency and accountability in the provision of property services. The 2020 Regulations cover standards to be adhered to by LPSPs in relation to: (i) conduct, behaviour and experience (ii) handling of client’s money (iii) publication of information (iv) communication and recording of offers (v) validation of references and checks in respect of tenants (vi) timelines for transfer of money from tenants (vii) notification of termination of tenancies (viii) administration of service charge and sinking fund contributions and (ix) notification of potential conflicts of interests. In addition to these minimum standards the 2020 Regulations also contain prohibitions on the way LPSPs conduct their business. For example, LPSPs must not: • Hold themselves out as possessing experience, competence, training or resources, which they do not possess • Accept any form of inducement, being a reward,

advantage or enticement other than the agreed fee • Retain any unused advertising outlay • Charge any fee other than to their client • Knowingly produce, publish or circulate false or misleading advertising information including (a) sales records (b) sales prices achieved (c) experience of the licensee or any licensed principal officer or employee (d) fees charged or chargeable or (e) applicable commission rates • Hold more than one booking deposit in relation to the sale of the same land at one time, without reasonable cause • Be a director of a management body of a multi-unit development, where property management services are provided to that management body by the LPSP or other specified parties.

Penalties for Breach Failure to comply with the standards set out in the Regulations is “improper conduct” and has serious consequences for offenders. The PSRA has the power under the 2011 Act to impose major sanctions for improper conduct including monetary sanctions up to €250,000, suspension of the LPSP’s licence, revocation of LPSP’s licence or any combination of the above. The 2011 Act also provides for a range of offences such as providing a property service without a licence, obstructing an investigation or mishandling of client funds. Any person found guilty of such an offence may be subject to a fine of up to €50,000 or five years’ imprisonment or both.

For LPSPs, now is the time to consider if your current processes and procedures are compliant with regulations or if they need to be modified and updated to operate effectively within the new regulations

Conclusion The aim of the 2020 Regulations is to ensure that there is transparency and accountability in the provision of property services in Ireland. They require LPSPs to act in a professional and reasonable manner for their clients. For LPSPs, now is the time to consider if your current processes and procedures are compliant with regulations or if they need to be modified and updated to operate effectively within the new regulations. If you are in receipt of a property service, you should ensure that the property service provider is licenced with the PSRA and be aware of the minimum standards expected to be adhered to by the LPSP. P the Parchment 23


Eoin Brady is a senior associate and Grainne Tiernan is an associate at Mason Hayes & Curran. Both specialise in Planning and Environmental law

Planning

Substitute Consent Procedure Enacted Following a Supreme Court decision on Substitute Consent last year, the Oireachtas introduced new legislation in December 2020 to provide for a reconstituted Substitute Consent process. Eoin Brady and Grainne Tiernan take a closer look

The fact that there is now the potential to regularise developments which may have been affected by the loss of a regularisation process will come as a relief to many developers

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he Substitute Consent process allows developers to apply to An Bord Pleanála, (the Board), for permission to regularise permission for certain developments. Developments that come within the scope of the process are those that are found or considered to be non-compliant with provisions of EU law. The Substitute Consent process was thrown into chaos last year when the Supreme Court struck down provisions of the legislation regarding the requirement to demonstrate “exceptional circumstances” for regularisation. It also highlighted the requirement that members of the public should be able to participate in the process from the initial stage. What this meant in effect was that any developments which may have found themselves on the wrong side of the law, had no way to ‘cure’ their particular legal problem, with the result that affected developments could not proceed.

Supreme Court Decision The Supreme Court’s decision had significant impacts on activities across a number of particular industries such as those in the quarrying and peat extraction industries. Individual developments already in the process of applying for Substitute Consent or preparing for similar applications were also affected.

New Provisions In response to these concerns the Government introduced amendments to the Planning and Development and Residential Tenancies, Bill 2020 to provide for a reconstituted Substitute Consent process. The amendments were introduced in the Oireachtas in early December 2020 and passed by the Oireachtas on 16th December 2020. The rushed nature of the debate on the legislation was severely criticised by opposition politicians. The new provisions are inserted into Section 177 of the Planning and Development Act, and provide for amendments to the Substitute Consent procedure as follows: • “Exceptional circumstances” must be considered by the Board in the substantive or second stage application for substitute consent, and • Public participation is facilitated with respect to the consideration of “exceptional circumstances”, as well as on the wider application of substitute consent 24 the Parchment

Applying the New Provisions The amendments are to apply to both new and existing applications pending before the Board. The amendments maintain the format of the two-stage Substitute Consent process, concerning an initial ‘leave’ application stage followed by a ‘substantive’ application stage. The amendments provide that the Board at the ‘substantive’ application stage can only grant substitute consent where it is satisfied that “exceptional circumstances” exist which would justify the granting of such consent. In making that determination, the Board cannot be bound by, or have regard to, any determination made by it at the ‘leave’ stage as to the existence of “exceptional circumstances”. A Board member who considered the application at the ‘leave’ stage is precluded from participating in the determination of the substantive application stage. Furthermore, the public is now to be afforded the opportunity of making submissions on whether “exceptional circumstances” exist which would justify the granting of Substitute Consent. In addition, transitional arrangements are provided for public participation on resumed applications for Substitute Consent.

Conclusion The amendments to the legislation deal with the two issues which were at the core of the Supreme Court decision last July, namely public participation and “exceptional circumstances”. It is hoped that the amendments will allow those applications which were affected by the decision to resume their consideration by the Board. The fact that there is now the potential to regularise developments which may have been affected by the loss of a regularisation process will come as a relief to many developers. However, it remains to be seen as to how the Board will apply the ‘exceptional circumstances’ test in practice. There had been a criticism of the Board by environmental campaigners that many of the Board’s decisions gave insufficient attention to the requirement that regularisation only be permitted in “exceptional circumstances”. In that regard, the decisions made by the Board under the new procedure will be closely scrutinised to see if there is any substantive approach in their analysis of the “exceptional circumstances” test, and as with all contentious areas of environmental and planning law, it is likely that further litigation concerning the Substitute Consent process will ensue in due course. P


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Remote Working WRC GIVES CLEAR MESSAGE TO EMPLOYERS Remote working is on everyone’s minds these days as so many of us have been doing it since March 2020 due to the Covid-19 pandemic. Ciarán Ahern examines a recent WRC case and explores the legal position on remote working

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t the moment, there is no right to work remotely. The government’s current Level 5 restrictions advise that we should all work from home unless it is essential for our work. This may include providing health, social care or other essential services which cannot be done from home. The vast majority of employers are complying with the government’s ongoing guidance that anyone who can work from home should do so until further notice. However, as Chief Medical Officer Dr Tony Holohan commented previously, it is also clear from the levels of traffic on our roads that there have been relatively high levels of non-compliance with the government’s guidance to work from home. An employer’s duty to provide a safe workplace under the Safety, Health and Welfare at Work Act 2005 (the 2005 Act) is central to underpinning the current trend of employers facilitating working from home arrangements. This reasoning, coupled with the unprecedented circumstances of a pandemic, was emphasised in a recent decision from the Workplace Relations Commission (WRC) which awarded €3,712 in compensation to a former employee who resigned after being refused the ability to work remotely, notwithstanding that she was providing an essential service.

Executive Summary Importantly, the award in this case was relatively low only because the employee had secured alternative work within five weeks of her resignation. Interestingly, the claim in this case was made under the Unfair Dismissals Act 1977 (which limits compensation to actual economic loss suffered by a dismissed employee). However, employers should be aware that if an employee claims to have been penalised for raising health and safety concerns (such penalisation culminating in their enforced resignation) there is potential for a case with similar 26 the Parchment

fact patterns to be taken under Section 27 of the 2005 Act, which would allow for uncapped compensation awards. While the facts of the case played a major role in the outcome, employers should heed the ruling and ensure that their organisations are in a position to justify requiring any employees to attend the workplace even where they are providing an essential service. This is particularly so if some or all of an employee’s duties may be performed remotely (and even if the job may be performed to a better standard or more comprehensively by attending the office). In this case note, we break down the recent WRC decision, and highlight some of the key points employers should consider.

What Happened in this Case? The case concerned the resignation of an employee after she (and her co-workers) had repeatedly requested and been refused permission to work from home. The employee (an operations coordinator) was responsible for supporting the management of student accommodation for a client university. As part of her role, she worked in a small office, which was shared with two other colleagues. Over the course of several weeks, the employee experienced stress and took sick leave due to her concern of being exposed to Covid-19 by working in such close proximity in a confined space with other employees. During this time, she repeatedly voiced her concerns to management by email, but she asserted that her complaints had been “brushed under the carpet”. She also believed that her working arrangements represented a health risk to her husband who suffered from severe asthma. Indeed all three employees in that office lived with “high risk” category individuals. The employees in the office suggested to management that they could rotate their presence in the office to mitigate the risk of infection. The employees believed that the vast majority of their duties could be performed


Spring 2021 dsba.ie Ciarán Ahern is an associate in A&L Goodbody’s Employment, Pensions and Incentives Group

from home, but to the extent that an on-site presence was required, under their suggested inoffice rotation there would be at least one employee on site at all times. All three employees working in the small office submitted formal grievances to management regarding their working arrangements, but the employer continued to refuse to allow the employees to work remotely, and also refused the suggestion regarding in-office rotation. The employer maintained that, although it was conscious of the employee’s personal circumstances, the decision to allow remote working was a matter solely for the employer to determine and it was satisfied that it had sufficient health and safety measures in place (e.g. provision of PPE, screens between desks, realignment of desks), and that no other employees had raised concerns about these measures. The employer noted that no one had suggested that these roles could be performed remotely prior to the pandemic, and that this remained the case. Finally, the employer advised the employees that if they remained unhappy with the situation, they “could absent themselves from work and check if they are entitled to a State benefit”. Having had her grievance refused, the employee resigned and subsequently filed a complaint with the WRC.

Case Outcome The adjudication officer concluded that by continuing to insist that the employee attend the workplace in spite of the health and safety risks, the employer was not in compliance with health and safety legislation, and that this amounted to a fundamental breach of the contract of employment. The adjudication officer concluded that the employee was entitled to consider herself to be constructively dismissed for three reasons: 1. The suggestion by the employees regarding rotating attendance in the workplace was a sensible suggestion as all employees had interchangeable duties which required on-site presence. Accordingly, the employer acted unreasonably by not implementing the rotation suggestion at least on a trial basis. 2. There was no evidence presented that the client (i.e. the university) had objected to remote working. The employer therefore did not provide an adequate reason for refusing remote working. 3. The provision of PPE did not absolve the employer of their duty to eliminate risks in the workplace. Of note here was the small size of the shared office, which was not considered carefully enough by the employer. Due to the fact that the employee had secured alternative work since her resignation, the compensation award made by the WRC was relatively minor.

Constructive Dismissal Ordinarily, claims under the Unfair Dismissals Act 1977 feature a reversal of the burden of proof, whereby all dismissals are presumed to be unfair unless proved otherwise by the employer. However, in constructive dismissals cases the burden of proof

Employment Law

is on the employee to demonstrate that they had no choice but to resign. Therefore, claims of constructive dismissal can be significantly more difficult for employees to succeed in proving. In general, employees who take constructive dismissal are required to prove that the employer’s conduct amounts to a fundamental breach going to the root of the contract, or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, or that the employer’s behaviour was so unreasonable that the employee, having exhausted all internal grievance procedures, could not be fairly expected to put up with it any longer.

Do Employees have a Right to Work Remotely? There is currently no general legal entitlement for employees to work remotely. However, as illustrated in this most recent WRC decision, employers must consider and deliberate on requests for remote working very carefully during the ongoing pandemic. Employers must continue to heed the current public health guidance, which currently advises that employees must continue to work from home unless absolutely necessary for an essential service. Health and safety risk assessments should be undertaken in workplaces and all measures reasonably practicable should be put in place to mitigate the risks to employees – it is likely that remote working would be expected to be seriously considered in any such risk assessment. Employers should not rely on generic business reasons for denying remote working requests, and instead should undertake a careful individual assessment of an employee’s role, the impact it may have on the business, and any specific health considerations relating to an employee (and potentially their dependents) in determining whether work can be performed remotely. Finally, it should be noted that a statutory right to request flexible working arrangements (which may include remote working) does exist for employees who return from parental leave, and therefore may need to adjust their working hours. The Irish government recently published a strategy on remote working entitled “Making Remote Work”. As part of this strategy, legislation is promised to provide for a general statutory right to request remote work. While little is known yet about the extent of this planned right to request remote working, it is envisaged that employees will have a right of appeal against any refusal.

Employers should not rely on generic business reasons for denying remote working requests, and instead should undertake a careful individual assessment of an employee’s role, the impact it may have on the business, and any specific health considerations relating to an employee (and potentially their dependents) in determining whether work can be performed remotely

Key Summary Points for Employers This decision of the WRC serves as a stark warning to all employers that requests for remote working arrangements should be considered very carefully and individually. In summary, employers should: • have a robust and up-to-date remote working policy, risk assessment and safety statement in place; • ensure that internal grievance procedures adequately address health and safety concerns; • factor employee suggestions and input into health and safety decisions; • consider all requests for remote working carefully and individually. P the Parchment 27


Covid-19 and Employment Contracts Ciara O’Kennedy looks at the employment landscape one year on from Covid-19 and says the last 12 months have brought about significant changes to the way we work, many of which are here to stay

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any employers have been forced to implement radical overhauls of their business operations in order to remain viable, with such changes likely to require adjustments to terms and conditions of employment for employees. In many industries, remote working is now the norm and a blended work environment between home and office, when the restrictions lift, is likely to be the future. Businesses have also been forced to consider stark options such as pay cuts, reductions in working hours and lay-offs. To avoid or minimise job losses and to keep their businesses afloat, employers may wish to alter the existing terms and conditions of their employees. Any variation of a core term of an employee’s contract needs the employee’s consent to avoid the risk of legal challenge. But is the Covid-19 pandemic an exceptional circumstance justifying variations to an employment contract without employee consent to ensure survival of a business? The simple answer is no. This article considers whether there are any circumstances in which variations may be permissible without consent, the risks associated with implementing changes in the absence of consent, and the possible defences available to employers who are left with no alternative but to implement changes unilaterally.

Changes to Terms and Conditions Permanent or temporary variations to terms and conditions can occur: 1 With the employee’s consent. 2 Without the employee’s consent, but in reliance upon a contractual provision allowing for variation 28 the Parchment

of the contract, such as a variation or mobility clause. 3 Without either the employee’s consent or a variation clause.

Variations with Employee Consent The provisions of an employment contract most affected by the impact of Covid-19 relate to remuneration, working hours and location of work. Remuneration and working hours are fundamental terms of any employment contract (as is work location but to a lesser degree). It is a general principle of contract law that the terms of a contract cannot be altered without the agreement of both parties, meaning that unilateral alterations of these provisions by an employer would generally amount to a breach of contract. Employers must also consider the statutory protections afforded to employees. Reducing an employee’s pay unilaterally and without consent may also expose employers to claims under the Payment of Wages Act 1991 before the Workplace Relations Commission, or employees may resign and claim constructive dismissal. To implement a valid reduction in pay or working hours, without the risk of legal challenge, employee consent or agreement should be sought. In practical terms this should involve communicating with employees regarding the financial impact of Covid-19 on the business, outlining the rationale behind the proposed changes and consulting with the employees well in advance of the proposed changes to obtain the necessary agreement to reduce pay or working hours. Once consent or agreement has been obtained, employers should record the fact of the agreed variation to the terms and conditions in writing.


Spring 2021 dsba.ie Ciara O’Kennedy is a partner in the Litigation and Dispute Resolution Team at LK Shields. She is chair of the DSBA’s Employment Law Committee

This can be done by way of a side letter or addendum to the contract which must be provided to the employee no later than one month after the change takes effect. A prudent employee may wish to specify that his/her agreement to the variation is for a specified period of time with a view to being reviewed and pre-Covid-19 terms being reinstated when possible. In such circumstances employers should consider including a review date when the change(s) can be reconsidered. An employee, who continues to work under altered terms and conditions of employment, without expressly accepting or objecting to the changes, has arguably acquiesced to the changes and is likely to find it difficult to subsequently challenge. An employee who accepts changes under protest is keeping open the possibility of a legal challenge.

Flexibility and Variation Clauses Many employment contracts include a flexibility or variation clause that purports to allow employers to vary the terms and conditions of employment without any input from an employee. While the existence of such a clause in an employment contract may be of some comfort if changes are proposed, it should not be relied upon in isolation to impose changes without consultation. The Irish Courts, while accepting, that in certain circumstances alterations to terms and conditions are necessary for commercial efficacy, have consistently held that such clauses must be exercised reasonably. It is generally accepted that such clauses are intended to permit minor nonmaterial changes, which do not relate to core terms, such as updates to reflect changes in law or statute or a change in a work practice. Imposing pay cuts, even of a temporary nature, without consultation or consent, by reliance on such clauses is unlikely to be viewed by a Court as reasonable.

Mobility Clauses With remote working, or some form of hybrid arrangement between home and workplace set to continue, many employers have already taken steps to reduce the capacity of their physical workplace. Reliance on a mobility clause post lockdown to relocate employees to work from home permanently, or, to introduce a hybrid working arrangement where employees are opposed to such changes is not without risk of legal challenge. Case law illustrate that mobility and variation clauses must be exercised reasonably. In O’Byrne v Dunnes Stores, the Irish Supreme Court found that Dunnes Stores had breached the employee’s contract of employment when it sought to rely on a general mobility clause to move an employee from Tallaght to Blanchardstown without any advance notice or consultation. In order to successfully rely on a mobility clause to introduce significant changes to a work location, employers should provide employees with as much notice as possible of the proposed change, provide detail on the commercial rationale for the proposed changes and afford the employees an opportunity to make representations in respect of the changes before introducing such measures.

Employment Law

Can Employees who Refuse to Accept Alterations to Terms and Conditions be Lawfully Dismissed? Section 6.1 of the Unfair Dismissals Act 1977-2015 (the Acts) provides that dismissals are deemed to be unfair for the purpose of the Acts unless “having regard to all the circumstances, there are substantial grounds justifying the dismissal”. Can a dismissal for refusal to accept material changes to terms and conditions, which an employer claims are essential to the survival of a business, qualify as “substantial grounds” so as to make the dismissal lawful? The UK Employment Appeals Tribunal has accepted the proposition that a dismissal following a refusal to accept revised terms and conditions is capable of constituting “substantial grounds “if challenged. To successfully rely on this provision, employers should act reasonably in the manner in which they introduce such variations. Decisions from the UK Tribunal have helpfully identified various important factors, set out below, which Irish employers should consider prior to taking any action to terminate employees who refuse to accept necessary material changes to their terms and conditions: 1 The UK Tribunals have placed considerable emphasis on consulting and engaging with those employees’ who object to the changes and in particular to carefully consider their reason for objecting. Failure to do so will likely make it more difficult to successfully rely on this ground if challenged. 2 The nature, commercial rationale and full effect of the proposed changes should be sufficiently and clearly explained to employees. Given the importance of fair procedures in the Irish context, it is likely that the procedural fairness adhered to by an employer in seeking to introduce changes to fundamental terms of the contract will be critical. 3 The UK Tribunals have placed considerable weight on the extent of the consultation process engaged in with the affected employees. The importance of consultation has been repeatedly emphasised in the UK decisions as has the extent to which employers have considered the impact on employees of the changes and any alternatives to the changes proposed. 4 Consideration should be given to the extent to which the burden of the proposed changes is being shared between management and employees below management level. Ideally any changes should be across the board and not targeted at lower paid employees or middle management while senior management remain unaffected. Targeting specific groups of employees can also lead to potential discrimination claims and should be avoided.

To avoid potential claims and employee unrest, employers who propose to implement variations to employee terms and conditions, on a permanent or temporary basis, should consider putting in place arrangements to engage and consult with them in advance

Engage and Consult To avoid potential claims and employee unrest, employers who propose to implement variations to employee terms and conditions, on a permanent or temporary basis, should consider putting in place arrangements to engage and consult with them in advance. Where agreement cannot be reached, evidence of reasonableness, consultation and negotiation by the employer will be critical in successfully defending any legal challenges that may ensue. P the Parchment 29


Tax Matters Brian Broderick gives helpful tax tips to probate practitioners concerning Legal Personal Representatives

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robate practitioners are getting to grips with the new Form SA.2, and an article in the DSBA Winter Parchment looked at some of the ways the Revenue may use the information now available electronically from this form. Estates can have significant income levels (for example there can be a rental property or share portfolio) and Revenue can now check the Form SA.2 for income bearing assets, to ensure that the income is returned and any tax due is paid. The liability for tax on income arising in the course of administration rests with the Legal Personal Representative (LPR), and also with the beneficiary who is entitled to the income.

Income Arising to an Estate An LPR who receives income when administering the estate is subject to income tax at the standard rate of 20%, but is not subject to PRSI or USC. Income tax returns should be prepared and filed, with a payment of tax, by the usual pay and file deadline of 31 October. The beneficiaries of an estate, who receive income, are also subject to income tax (together with PRSI and USC) on that income, but can claim a credit for any tax paid by the LPR. In effect, the beneficiary “tops up” the tax paid by the LPR, to match the tax the beneficiary would have paid, had the income arisen directly to the beneficiary. The LPR should provide a Form R185 to the beneficiary to set out the income and tax credit. Strictly speaking, the income tax should be calculated by reference to the year in which the income arose, but the liability to pay income tax on it does not arise until the distribution is received. If an estate received income in 2020, but it is not distributed to the beneficiary until 2021, the tax is calculated on the basis of the beneficiary’s 2020 income, but the liability to file the tax return and pay any balance of tax due does not arise until 31 October 2021. If the income level is small and the tax position is straightforward, Revenue may agree to treat the income as arising directly to the beneficiaries, from the date of death. This does not result in any income tax saving, as the beneficiary still pays tax at the marginal rate, but it simplifies the administration as the LPR does not need to file a return. 30 the Parchment

Extract from Revenue Guidance Note: “It should be noted that, where an estate which is small and is a straightforward one (for example, only one or two residuary beneficiaries with no annuitants, life tenants or other persons with an entitlement to any of the income of the estate) the inspector may adapt an approach simpler to that provided for in this section and tax the residuary beneficiary directly on all the income of the estate received from death onwards. In such cases no assessments are made on the personal representative and the beneficiary is taxed each year as if he/she had received the estate income from its various sources directly himself or herself. The position should be confirmed in writing each time as Revenue will not operate the concession in every case (for example if a beneficiary is nonresident). Example: The main assets in Liam’s father’s estate were two residential properties and the value of each was similar so Liam’s father specifically devised property A to Liam and passed the residue of the estate (which included property B) to Jill. The rental income on property A during the course of administration was €15,000 and the rental income on property B during the same period was €20,000 (after deducting letting expenses). The total income for the estate was €35,000 and the estate was registered for income tax. Form 1 tax returns were filed and 20% income tax was paid(€7,000). A Form R185 was provided to Liam setting out gross estate income of €15,000 on Property A and an income tax credit of €3,000. The income of €15,000 should be included in Liam’s Form 11 income tax return together with a tax credit of €3,000. Similarly, a Form R185 was provided to Jill setting out gross estate income of €20,000 on Property B and an income tax credit of €4,000. Jill should include €20,000 of income in her Form 11 income tax return together with a tax credit of €4,000. Both Liam and Jill are resident in Ireland and if Liam, as LPR, obtained agreement from Revenue to treat the income as arising directly to the beneficiaries there would have been no requirement to file a Form 1 income tax return for the estate. The overall income tax liability would have been the same but Liam and Jill would have accounted for the tax.


Spring 2021 dsba.ie Brian Broderick is a tax practitioner at O’Hanlon Tax Ltd

Dealing with Income in the Estate Accounts Where income arises to an estate, the income belongs to the individual who inherited the income bearing assets, unless the Will directs otherwise. When the estate is being distributed, the income should be accounted for in an income distribution account (separate to the capital distribution account). Each beneficiary receiving a share in the income should be advised of the level of income being distributed and any tax credit available (using a Form R185). If the Revenue concession is obtained then there will be no tax credit available as the estate will not have paid any income tax, and the Form R185 is not required. If a separate distribution account is not provided for income, a beneficiary may not be conscious of the fact that income is being received, particularly if the income has been used to pay estate expenses. The debts, funeral and testamentary expenses should be paid from the capital of an estate, in line with the provisions of the Succession Act 1965. However, if the estate does not have enough cash to cover expenses the LPR may opt to use income rather than selling an asset, in which case the income should be treated in the same way as a cash contribution from the relevant beneficiary. The use of the cash does not alter the nature of the funds received, or any tax liabilities that attach to the income. If rental expenses are incurred (e.g. estate agent fees or routine maintenance costs) the expenses should be paid from the rent and allocated to the beneficiary who is entitled to that rent. They can be deducted from the Case V rental income in the income tax computation. In practice, keeping separate cash accounts and distribution accounts for income and capital will make the process of accounting for tax much more straightforward. Example: Expanding on the previous example, there were cash assets in the residue of the estate amounting to circa €30,000 and the liabilities of the estate totalled €60,000. The only other asset in the residue of the estate was Property B. The income on Property A was due to Liam so it could not be used to pay estate expenses. The income on Property B (after the payment of income tax by the estate) was €16,000 so Jill asked the estate to set

Probate/Tax

this amount against the liabilities and she contributed a further €14,000 to meet the balance of the estate liabilities. Estate liabilities €60,000 Estate cash assets (€30,000) Net income contributed (€16,000) * *€20,000 rent less €4,000 estate tax (20%) Balance to meet liabilities €14,000 * *contributed by Jill In effect, the €16,000 of net rental income attributable to Jill and the €14,000 direct contribution of cash by Jill (a total of €30,000) was a contribution to cover the estate expenses. Jill effectively provided funds of €30,000 so that she can take Property B in specie and prevent the property being sold. The Income Account for the Estate could be set out as follows: Income Account Rental Income Income Tax Net Income Distribution to Liam Rental Income Income Tax Net Income Contribution by Jill

Property A €15,000.00 (€3,000.00) €12,000.00 (€12,000.00) Property B €20,000.00 (€4,000.00) €16,000.00 (€16,000.00)

The LPR should bear in mind that he will remain personally liable for the estate’s income tax after distribution so he should satisfy himself that the income tax position has been dealt with, particularly if the level of income is significant

Conclusion There can also be stamp duty and Capital Gains Tax implications to take into account where a capital contribution is made to an estate, as the payment is treated for tax purposes as a part purchase of the asset which is being distributed. While the final liability to pay income tax rests with a beneficiary, the LPR should bear in mind that he will remain personally liable for the estate’s income tax after distribution so he should satisfy himself that the income tax position has been dealt with, particularly if the level of income is significant. It is reasonable to assume that with more information at Revenue’s fingertips they will take steps to prevent tax leakage in relation to estate income. P the Parchment 31


Colin Monaghan is a partner in the Dispute Resolution Team at Mason Hayes & Curran

Litigation

Third Party Litigation Funding The law on third party litigation funding in Ireland has been the subject of a number of significant superior court decisions in recent years. These have defined what is, and is not, currently allowed. Colin Monaghan takes a look at the latest position Introduction

Despite these loud calls for reform, however, the present position is that professional “for profit” third party litigation funding remains unlawful in Ireland

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The type of litigation funding that we are concerned with at present, is where a third party, who is not a party to the proceedings in question, provides funding so that they can proceed. In Ireland, this type of funding remains subject to the ancient rules of maintenance and champerty. Maintenance is the funding of litigation in which the funder has no interest. Champerty is the funding of litigation in exchange for a share of the proceeds of that litigation. Both maintenance and champerty remain criminal offences and civil wrongs in Ireland. As such, financial institutions need to be aware of these rules for their own compliance regimes. Although these rules have been abolished in most other common law jurisdictions, they maintain what the courts have recently described as a “practical vibrancy” in Ireland. In interpreting and applying these rules, recent court decisions have provided welcome clarity on what is and is not currently allowed.

What is currently allowed Two types of third party litigation funding are currently allowed in Ireland as follows: • Funding by a third party with a legitimate interest in the proceedings, such as a creditor or a shareholder of a company that is a party to the litigation in question. This was approved in the case of Thema International Fund v HSBC International Trust Services (Ireland) Ltd. It is important to note that these third party funders risk being made personally liable for the costs of the litigation if the party that they are funding ultimately loses the case in question. • Funding litigation on foot of an “after the event” insurance policy. This was approved in the case of Greenclean Waste Management v Leahy. The third party funder in this instance is the insurer who provides the coverage. These policies are generally taken out by a plaintiff after a dispute has arisen and are designed to provide protection to that plaintiff if they are unsuccessful in the litigation in question. Typically, the insurance premium is only paid if the plaintiff is successful. These policies can

also be used to defeat an application by a defendant for security of costs in certain circumstances.

What is currently not allowed In the 2018 case of Persona Digital Telephony Limited v The Minister for Public Enterprise, the Irish Supreme Court confirmed that professional “for profit” third party litigation funding remains unlawful in Ireland. This type of funding is where an entity, usually a professional litigation funder, with no connection to or legitimate interest in the case in question, provides funding in relation to the case in return for a profit. This is unlike the current position in the UK and other common law jurisdictions where this type of funding is allowed. Similarly and more recently, the Irish Supreme Court held in the case of SPV Osus Ltd v. HSBC Institutional Trust Services (Ireland) Limited & Others that an assignment of a right to litigate to an unconnected third party which has no legitimate interest in the cause of action offends the rules of maintenance and champerty and is likewise void under Irish law.

Conclusion In its decision in the Persona case, the Supreme Court stated that any change in the law in Ireland relating to professional third party “for profit” litigation funding should come by way of legislation enacted by the Irish parliament rather than by way of a court decision. However, no such legislative change has yet taken place, although there have again recently been hints that this may be in the pipeline. For example, on 29 January 2020, Chief Justice Frank Clarke of the Irish courts published a report that he had commissioned the EU Bar Association and the Irish Society of European Law to prepare in relation to litigation funding and class actions. This report strongly recommends that proper provision is made in Ireland for representative class actions and litigation funding. The report set out that both are essential mechanisms of access to justice, having been recognised as such across multiple jurisdictions. Despite these loud calls for reform, however, the present position is that professional “for profit” third party litigation funding remains unlawful in Ireland. P


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Book Reviews Keith Walsh has spent some of the lockdown enjoying three legal books new to the market. All three deal with family law and mediation areas of practice

Irish Family Law Handbook Kennedy and Maguire (6th edition, Bloomsbury Professional 2020) Now in its 6th edition, the Irish Family Law Handbook remains the go-to book for family lawyers. Written by well known family law barristers Deirdre Kennedy and Elizabeth Maguire, it sets out the main family law statutes, extracts from the Constitution, Court Rules and Brussels II bis. Since the 5th edition was published in 2016 there have been significant changes to the law on Divorce and on Domestic Violence as well as substantial changes to the Circuit Court Rules. Due to the huge number

of amendments inserted by the Children and Family Relationships Act 2015, the Guardianship of Infants Act is unintelligible without this book and it is appropriate that it is the first statute in the table of contents. An example of the practical helpfulness of the notes to the legislation is the reference in the note accompanying Section 5 of the Family Law Act 1981 which directs the reader to section 48 of the Family Law Act 1995. Section 5 seems very wide but this helpful reference to section 48 prevents the reader from falling into error by reading section 5 in isolation. Section 48 of the 1995 Act limits the application of section 5 of the 1981 Act to the rules of law applicable to determining disputes between formerly engaged couples in relation to the beneficial ownership of property and specifically excludes its application to the Succession Act 1965, the Family Home Protection Act, 1976 the Judicial Separation and Family Law Act 1989 Act or the 1995 Act. This book is the most up-to-date and relevant collection of family law acts available and the ease of reference – as well as the user-friendly nature of the notes and references alongside amendments and commencements of sections of legislation – is second to none. Once again Mesdames Kennedy and Maguire have done some service to the rest of us family lawyers who profit from their volume daily.

Family Mediation: Contemporary Issues Roberts and Moscati, Bloomsbury Professional

Mediation Law McRedmond, Bloomsbury Professional The recent publication of the Heads of the Family Law Court Bill with its emphasis on mediation as well as the Department of Justice’s announcement in February that it was moving to set up a Mediation Council have reignited the debate on the suitability of mediation for resolving all family law disputes. Although mediation is only one of a suite of alternative dispute resolution mechanisms available to resolve disputes along with arbitration, lawyer assisted settlement, collaborative law and conciliation; it sometimes feels like it is the only alternative. 34 the Parchment


Spring 2021 dsba.ie Keith Walsh is principal of Keith Walsh Solicitors, Crumlin. He is a former President of the DSBA

In Mediation Law, which sets out the legal basis and background to the Mediation Act 2017, McRedmond points out, when the Mediation Bill was being debated in the Oireachtas, Women’s Aid successfully lobbied to include the following section into the Mediation Act 2017 Practising solicitor and mediation 14. (1) A practising solicitor shall, prior to issuing proceedings on behalf of a client—… (d) advise the client that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk, ..” This arose from a concern voiced by Women’s Aid that family law disputes that were not suitable for mediation were not just those under the Domestic Violence Acts but also those where the safety of the client and/or their children may be at risk. McRedmond points out the paradox that section 14 does not apply to proceedings under the Guardianship of Infants Act 1964, the Judicial Separation and Family Law Reform Act 1989 or the Family Law Divorce Act. However the intention is clear, mediation is suitable for many family law disputes but not those involving domestic violence or where the safety of the client and/or their children is at risk. Mediation Law is a very clear and comprehensive guide to mediation and the law in Ireland and should find a place on all family lawyers’ and civil litigators’ bookshelves. Irish contributors Conneely and O’Shea to Family Mediation: Contemporary Issues, in an excellent analysis, provide the Irish perspective and examine the development of family mediation in Ireland. One of their proposals to reduce the cost of mediation would be to reduce the value added tax rate for family mediation and family law solicitors. They believe a radical culture shift among those with disputes to resolve is required if mediation is to thrive in Ireland. There is much to learn from the UK experience which is often cited as an example to be followed in terms of mediation. However, developments there are not all positive according to an excellent chapter by Marian Roberts in Family Mediation: Contemporary Issues. Roberts, in looking at new manifestations of power in family mediation, highlights developments in the context of family justice in the UK that increase the risk of distorting legitimate mediator authority and of undue power being exerted in family mediation. She identifies these developments as including severe cutbacks in legal aid resulting in the denial of access to justice in family law cases. Official promotion of family law mediation as the favoured default process in private family law cases has increased the referrals of unsuitable cases to mediation including domestic abuse cases where more covert forms of controlling and coercive abuse can be difficult to evidence. If the domestic abuse were more identifiable then legal aid may have been made available. Another concern for Roberts is the emergence of those claiming to be family mediators who practise privately outside the remit of the existing professional regulatory framework. We still await a professional regulatory framework for mediators in

Book Reviews

Ireland. Roberts also points out that where there is inadequate pre-mediation screening for suitability and where unregulated family mediation practice could be unethical and even dangerous, the public and the credibility of the family mediation profession are at risk. The lessons for Irish mediation are clear –mediation must remain one of a number of options and it must not be a substitute for other means of Alternative Dispute Resolution (ADR) or prevent a litigant’s right of access to the Courts. Neither must it be offered as the only alternative where access to justice is denied due to ineligibility to legal aid. Mediation must be voluntary. However, where mediation is true to its core principles of voluntariness, of confidentiality, of impartiality, of fairness, then mediation will bring value to its participants. In praise of mediation, Roberts concludes: “When mediation can provide both parties with a calm and safe opportunity to improve their means of communication and negotiate a mutually agreed and fair resolution of their differences, in their own interests and especially those of their children, it fulfils its lofty yet modest objectives.” P

Mediation must remain one of a number of options and it must not be a substitute for other means of ADR or prevent a litigant’s right of access to the Courts the Parchment 35


An Ardent Cause

Senator Catherine Ardagh is a Fianna Fáil Senator in Dublin South Central. She is a qualified solicitor who practises in her own all-female led practice Ardagh McCabe Solicitors in Crumlin. She recently hit the headlines when she shared her personal IVF journey in a bid to push for legislation for free access to fertility treatment. Julie Doyle spoke to Catherine about her career to date and why she is passionate about this cause

Can you tell us a little about your background and where you grew up? I grew up in Dublin as the youngest of three. I have two older brothers Rory and Charlie. What drove you to choose a career in law and why did you decide to study in London? I went to London for the adventure. I can still remember the feeling of freedom and the vastness. I loved going on the Tube and exploring the city. It is a wonderful place to live and, if you cannot live there, to visit. I did not really set out initially to study Law. I went over to study Economics with Law as an add on but preferred it and ended up getting an LLB. When did you return to Dublin and what prompted your decision to return to Dublin? Can you tell us a little about your Masters’ study in Trinity College? I decided not to continue my studies in London like lots of my peers as my Dad had been unwell and I wanted to make sure I had more time with him. He got better but I was glad to be home. I felt that I was not quite ready to finish studying as I was 22 or 23 so completing a masters was a next step. The masters was great - lots of international students and I learned so much from them and from the course. You qualified initially as a Barrister. Can you tell us a little about your training 36 the Parchment

Having a legal background comes in useful in the Seanad when scrutinising and trying to improve legislation

and your practice? Were you particularly drawn to practising as a Barrister? I was very young when I qualified as a Barrister and very much felt that. In hindsight, I think a bit of life experience is quite useful in propelling a career at the Bar, but I had some wonderful mentors – Alistair Rutherdale and Marcus Dowling. I got great experience and exposure to law and learned that most things can be fixed so not to worry and I learned how to make decisions. Having a legal background comes in useful in the Seanad when scrutinising and trying to improve legislation. When did you decide to move to the dark side (!) and qualify as a solicitor and why? The recession hit and I needed a few bob, to be blunt. I had spent six months doing one of those junior discovery jobs in a big firm that many young barristers get and realised I enjoyed the stability of having something meaningful to do every day and the stability of an income. I knew, however, I wanted to work for myself so I went about preparing a business plan and transferring to become a solicitor. Where did you start out your practice as a solicitor and what is your focused area of practice? I rented a garage office on the Walkinstown Roundabout. My dad had started his accountancy practice there, so I knew the


Spring 2021 dsba.ie Julie Doyle is a member of the DSBA Parchment committee

20 Minutes With...

the Parchment 37


Photography: Bryan Meade

Conveyancing, Wills and Probate and litigation. It must have been a big decision to set up your own practice. How did this come about and what advice would you give to anyone who may be contemplating this? It was a big decision to set up. The main obstacle at the time was the cost of Professional Indemnity Insurance. That was a huge outlay starting out and was quite cost prohibitive. I was supported by my Bank though and got a business loan and have not looked back since. The advice I would give anyone is to draw up a costed business plan and look for an affordable office. I think now it might be easier to work from home but for general practice I think you still need to have an office in a community with visibility even though I know so much is online we still get some walk-in clients that I would be slow to turn my back on, many of whom are elderly and do not have good online access. The Legal Services Regulatory Authority (LSRA) recently issued a report on the potential unification of the two professions, concluding it remains premature. Having worked in both professions, do you agree? Do you believe there are barriers to possible unification? I do not think there are barriers. There is a benefit to having an independent referral Bar that, in theory, everyone has access to the best advocates and they are not all coveted by the same big firms. Many barristers, even the most successful, like to vary their work and also take on lots of pro bono work through the access programmes which are quite successful.

We have a population of 51% women and a representation in the Dáil of about 22%. We need to look at ourselves and see what we can do for our “sisters” to bring them on and support them in whatever roles they are looking to achieve in Irish life/companies etc. area and many of the local community members. It was a good fit as I had my own door yet had access to the main office in the building and other colleagues, so I was not on my own all day. At the start I was doing lots of employment law and immigration 38 the Parchment

work as I was used to that from the Bar and could do my own advocacy. Now in practice, (Ardagh McCabe LLP, I have joined with my amazing colleague from the Bar, Sinead McCabe) we concentrate mainly on Residential and Commercial

Your late father, Sean Ardagh, was a former TD. Politics must be in your blood! How did this inspire your own journey into politics and in particular party politics at an early age? I was very close to my Dad. We were never off the phone to each other all day talking or texting. He was an accountant but having attempted maths at a university level I got to know my limits very quickly. I was not able to follow his footsteps into the accountancy world but had been helping him out with constituency work since I was a teenager and really enjoyed it. Growing up we always had people in and out of the house with queries and I used to work in his office doing clinics when I was not studying. I got to love the interaction with people daily and that has not left me. I still really enjoy meeting people and advocating for them and essentially having a place in my community. I always tell aspiring politicians if you do not really love people then forget about it as that really is the essence of politics. Micheál Martin I have to say is a great person to watch on the hustings.


Spring 2021 dsba.ie

20 Minutes With...

You can tell he really enjoys it and manages to get great interactions and learnings which in turn informs policy which is the goal ultimately. You ran for local election initially in 2009 before being elected to Dublin City Council in 2014. What drove you to run for election and what were the greatest challenges for you as a Councillor? I was living and working in the Inner City in 2009 and experienced first-hand the social deprivation and lack of proper housing, sporting, and open play spaces in the area. This was something I felt strongly about and thought I could use my voice to help improve this for people living in the area. We still have so much work to do in terms of Social Housing and the regeneration of The Oliver Bond Complex in Dublin 8 is a current priority of mine. You were unfortunately unsuccessful in running for General election in 2016 and 2020. However, you were successfully elected as a Senator in 2016 and reelected as Senator in 2020. How do you think the Seanad proves its value amidst continued calls for reform? We have a progressive Fianna Fáil team of women and men in the Seanad and generally across the house we have many passionate and experienced advocates. Legislation like the Coercive Control Bill, Mental health Bills and the Irish Sign language Bill started life in the Seanad.

and support them in whatever roles they are looking to achieve in Irish life/companies etc. We may also need to look at more quotas politically and on boards. I could discuss this topic all day. It strikes me that you are a very resilient person. You faced election losses but built from those losses to run for election to the Seanad. Your personal resilience has been illuminated by bravely sharing your own public experiences with starting a family and IVF. Your story resonated deeply with so many people for which you must be applauded. Your IVF journey was eventually successful and congratulations to you on the birth of your twins. It must have been a difficult decision to publicly share your story? Yes, it was not an easy story to tell for me or my husband. It says a lot that we waited until it was behind us to tell it and fortunately for us, we were very lucky, and it was successful so in that way it may be easier to discuss. I am very conscious many others were not successful or may not have been able to afford to go down the IVF route and I am always thinking about that. We shared our story to reduce the stigma and to try and use my role as a Senator to effect change to the legislation to allow for free IVF in our public hospitals. It is something I am committed to working on until it materialises. It may take some time, but I will persevere.

What Governmental supports do you think should be available for IVF treatment? We should have a scheme akin to that in the UK where women get up to three rounds based on the NICE protocols in certain local authority areas. Much of the treatment is confidentially undergone. Female employees tend not to disclose their treatment to employers. It is mainly considered elective despite the physical and emotional toll it can bear. There are countless anecdotes amongst our profession of women working through IVF losses, multiple miscarriages, and treatments. Why do you believe the taboo still exists and what further employment supports should be made available? I think the taboo still exists because we as women and intended parents put so much pressure on ourselves and maybe also pressure from society to fulfil certain roles as mothers and fathers. People don’t discuss it because I think they are ashamed that their body has let them down. It is a hard one to isolate but there most definitely still is a taboo/shame which there should not be. There should be paid leave by the state for fertility treatment/miscarriage as we need to support families going through this traumatic time. Thank you for sharing your story with us Catherine and for bravely opening the conversation. P

Election 2020 saw a significant number of high-profile women losing their seats. The National Women’s Council of Ireland described the general election as a missed opportunity for gender equality. In your opinion, what are the greatest obstacles for women in running for political office and what advice would you give to any woman thinking of running? Having a small family and juggling public life is not an easy feat. Many meetings are held in the evenings when you want to spend time with your kids unwinding and putting them to sleep. Thankfully, zoom meetings have made it a bit easier to do both but I worry about losing time with my children in the evenings when we go back to faceto-face meetings. The traditional 4 “C” s are discussed when the topic of barriers to women facing public life comes up Cash, Childcare, Candidate selection and Confidence. I think they are all partly true but maybe a bit over simplistic. I am a huge believer that if women supported women more, we would see greater representation. We have a population of 51% women and a representation in the Dáil of about 22%. We need to look at ourselves and see what we can do for our “sisters” to bring them on the Parchment 39


Tribute

Colm Price Solicitor RIP

W

hen word reached the DSBA offices in mid January that Colm Price had passed away there was an avalanche of sadness throughout the Association and legal community. I didn’t personally know Colm. I knew of him as an esteemed past president of the Association for 1982 and someone who excelled as a lawyer in property in his firm of Kearns Price & Co on O’Connell Street, now long since carried on by his son Gearoid. Our Administrator Maura Smith, when word of Colm’s passing got out, was besieged with messages of sympathy with tributes to Colm. It is clear from those messages that so many colleagues were touched in so many ways by Colm in the decent, collegiate manner in which he always conducted himself and how he mentored and assisted those less experienced in law than himself. Below is a mere snapshot of some of those comments from colleagues – mainly colleagues who succeeded him as president of the DSBA. They speak powerfully as to the esteem in which he was held and the immeasurable role he played in the Dublin legal community and beyond.

Laurence Shields “I succeeded Colm as President of the DSBA. He had so many attributes it is difficult to record them all but many of those are already encompassed in the many e mails to date. He was kind, compassionate, knowledgeable, considerate, practical, available and encouraging. He was as has been said an ardent supporter of the DSBA. He was the rock of sense upon which many of his DSBA and wider colleagues relied. May he Rest in Peace and join Moira in Heaven.”

Judge James McCourt

“I am so sad to hear of Colm’s passing. It was Colm who brought me onto the DSBA. I will never forget his kindness, knowledge and empathy. Colm and Moya Quinlan were my go-to people when a word of wisdom was required relating to DSBA business. Ní bheidh a leithéid arís ann.”

Richard Bennett “A lovely man. Colm will be so sadly missed.”

Daire Murphy “Like all of you I remember Colm with great affection and warmth and I agree with all the sentiments that have been expressed. On the DSBA he never shirked giving a little redirection where he felt it was required! His other great passion within the profession was the Solicitor’s Benevolent Fund for which he worked tirelessly over so many years. A wonderful human being who will be sadly missed.”

Elma Lynch “It is indeed very sad news. I agree wholeheartedly with all that is being said about Colm. A gentleman in every sense of the word. He made a great contribution to DSBA and to the profession. I was doing a bit of tidying recently and came across a photo of the night of my dinner in 1986 and it was Colm, Moira, Dominic Dowling and myself and it brought back some great memories.”

Ruadhan Killeen “Such a tragic loss. Colm was a great friend of my father’s and was a huge help to me when my dad died. He used to drop into the office regularly unannounced to see how I was doing. I will never forget him. He will be sadly missed.”

David Martin

“I endorse everything that has been said. Colm was the embodiment of the collegiate solicitor. He was someone you could rely on. He will not be forgotten.”

“I agree with all that has been said. Colm was the standard bearer of what a good solicitor and person should be.”

Justin McKenna

“I agree with the sentiments already expressed. Colm was a thorough gentleman, always willing to assist colleagues. He was the driving force in the DSBA for many years. May he Rest In Peace.”

“I remember a council meeting in 1994. I produced the first publication of the Parchment. Colm, who never missed a meeting as a past president, announced that it was a bit short on information. I told him the next edition would be better. Colm was a critical contributor to the AGM, particularly in the matter of the election of the next council. It was important to him to ensure not only those who would be elected but more importantly those who would not.”

Helen Sheehy “I was so sad to hear of Colm’s passing. I’m sure however he is in a wonderful place and will in no time at all be mentoring newbies. He was always extremely helpful. He was very supportive of women long before that became a thing! If we could have a non-Covid funeral – his funeral would be a fitting tribute to him because he helped so many people and was known by so many people and so many people would want to speak highly of him.” 40 the Parchment

Orla Coyne

Judge Gerard Griffin

Kevin O’Higgins “A great colleague and mentor to so many of us. Helpful in every way and a font of knowledge in conveyancing and chancery matters. Always a welcome guest at the Golden Oldies.”

Geraldine Clarke That is indeed sad news. Colm was a wonderful colleague. He was supportive and encouraging to all who came after him in DSBA and was responsible for getting many of us involved. He was a perfect gentleman, a great calmer of troubled waters and a good friend. He will be sadly missed.” Joe O’Malley - President DSBA

P


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Legal Test for Summons Renewal Audrey Byrne, Bébhinn Bollard and Sean Kehoe report on a Court of Appeal (“CoA”) decision which confirmed the legal test for the renewal of a High Court summons

I

n the judgment given in Murphy v The Health Service Executive, [2021] IECA 3 the Court held that a plaintiff need only demonstrate that there are “special circumstances” which justify the renewal, providing welcome clarity for litigants. Although previous High Court judgments had indicated that a plaintiff was required to (i) show special circumstances to justify an extension of time to bring a renewal application, and then (ii) provide “good reasons” to justify the renewal, the CoA categorically rejected this two-tier test.

Order 8 RSC Order 8 of the Rules of the Superior Courts (“RSC”) outlines the circumstances in which a court may renew a summons where a plaintiff has failed to serve it within 12 months. Order 8 Rule 1(4) RSC states that a court may order a renewal “where satisfied that there are special circumstances which justify an extension.” Prior to the CoA’s recent judgment, this rule had been the subject of varying judicial interpretations. In both Murphy and Cullen v ARF Management Limited [2019] IEHC 802 and Downes v TLC Nursing Home Limited [2020] IEHC 465 the High Court concluded that a plaintiff must satisfy two requirements to have an expired summons renewed by a court under Order 8 Rule 1(4): (i) that there were “special circumstances” to justify an extension of time to bring the renewal application, and (ii) that there were “good reasons” to renew the summons. However, other members of the judiciary had been critical of this two-tiered interpretation. Most notably, Ms Justice Hyland 42 the Parchment

who stated recently “it seems somewhat unlikely that the drafters of Order 8, Rule 1(4) would have imposed a two-tiered test for renewing a summons” - see Brereton v The Governors of the National Maternity Hospital [2020] IEHC 172 [9].

Background The plaintiff issued medical negligence proceedings against the Health Service Executive (the “HSE”) by means of a personal injuries summons on 31 August 2018, claiming for alleged mistreatment during her stay at a Mayo hospital in 2016. This was a “precautionary summons”, issued to prevent the plaintiff ’s claim being defeated by the statute of limitations. The summons stated that the plaintiff would be unable to particularise certain key elements of her claim, namely the breach of duty and causation, until she received a number of expert medical reports. A significant period of time elapsed after the summons issued, partly due to the plaintiff ’s failure to provide the requisite outlay for the reports and partly due to delays in receiving the reports from doctors. The personal injury summons expired on 1 September 2019 without being served on the defendant. The plaintiff finally received the expert medical reports in January 2020, at which point she made an ex parte application to renew the summons. The plaintiff ’s application was successful and the summons was subsequently served on the HSE. Upon being served, the HSE brought a High Court application to set aside the renewal of the summons, on the grounds that the period between


Spring 2021 dsba.ie Audrey Byrne is a partner in the Private Client Group at McCann Fitzgerald. Bébhinn Bollard is a senior associate at McCann Fitzgerald. Sean Kehoe is a trainee solicitor at McCann Fitzgerald

the expiry of the summons and the renewal application was inordinate and had “resulted in general prejudice to the HSE”. The HSE’s solicitors also argued that the plaintiff had delayed seeking the expert medical reports after the first summons issued and that this did not constitute a “special circumstance” sufficient to justify an extension of time for renewal of the summons. Mr Justice Cross refused the HSE’s application to set aside the renewal. Although critical of the plaintiff ’s failure to inform the HSE of the claim and indeed provide it with a courtesy copy of the summons prior to receiving the medical reports, he held that the plaintiff was not responsible for the delays in receiving the medical reports and that these delays were a “special circumstance” which justified the renewal of the summons. Furthermore, he concluded that the HSE had not been subjected to “specific prejudice” as a result of these delays. The HSE appealed the decision, claiming that the trial judge failed to apply the correct legal test under Order 8 RSC. Specifically, the HSE argued that the trial judge ought to have applied the two-tier test endorsed by the court in Murphy and Downes.

Court of Appeal The CoA dismissed the HSE’s appeal and upheld the High Court’s decision to renew the summons. Mr Justice Haughton found no reason to interfere with the conclusions reached by the High Court, including its finding that the 5-month delay between the expiration of the summons and the renewal application had not

been excessive. He agreed with Mr Justice Cross that this delay was reasonable considering the plaintiff did not receive the medical reports until January 2020. In addition, he found that the plaintiff ’s advanced age and poor health provided further justification for this delay. In respect of the test to be applied for the renewal of a summons, the CoA held that the only question a court need consider when faced with a renewal application is whether there are “special circumstances” which justify renewal. After conducting an in-depth analysis of the wording of Order 8 Rule 1(4) RSC, Mr Justice Haughton concluded that if a two-step interpretation of this rule was to be adopted, the court would be introducing, “words that simply are not there.”

Concluding Remarks The CoA’s judgment has provided litigants with much needed clarity on the test for a renewal application. While plaintiffs will no longer have to overcome the preliminary hurdle of persuading the court to extend time for making a renewal application, they will still need to show the court that there is a “special circumstance” justifying renewal. It remains the case that the longer the period of time between expiration of the summons and the application to renew, the more difficult it will be to convince the court to renew the summons. The most prudent course of action therefore is to make a renewal application as soon as possible after a summons has expired. P

Litigation

It remains the case that the longer the period of time between expiration of the summons and the application to renew, the more difficult it will be to convince the court to renew the summons

the Parchment 43


The New Land Development Agency Bill 2021 On the 5th February 2021, the Minister for Housing, Local Government and Heritage, Darragh O’Brien, published the Development Agency Bill 2021. Godfrey Hogan reviews the Bill and gives an overview Overview

Purpose

The broad driver of the Bill is for the Land Development Agency to engage in land assembly, and to identify and utilise state lands to facilitate delivery of affordable dwellings. As part of this arrangement the Agency would have power to enter into joint ventures with local authorities or other parties. The Bill, if enacted, will seek to regulate relevant public land in order to increase the amount of land available for the provision of housing. The powers of the Land Development Agency would include the following; • develop and regenerate relevant public land, and to develop and manage housing on that and other land, including with other persons or bodies • for the agency to provide services to local authorities to assist them in the performance of their functions relating to housing • to provide for the establishment and maintenance by the Agency of a Register of Relevant Public Land to identify land that can be made available for housing • to provide for the acquisition by the Agency of relevant public land • to provide for the compulsory purchase of land by the Agency • to provide for a requirement that a proportion of dwellings provided on relevant public land and former relevant public land be made available at a price below market price

The key purposes of the Act are to: • enable measures to be taken to increase the supply of housing and in particular affordable and social housing • make available public land for housing • to assist in the development of a sufficient supply of housing available for rent and purchase at an affordable price • to establish appropriate mechanisms and collaborative structures between public and private bodies to develop relevant public land, land owned by the Agency and land that is privately owned that is identified as suitable for strategic and timely delivery of housing

Section 4 (1) provides that relevant public land is all land within a census town owned by a relevant public body. A relevant public body is in turn defined as a local authority, and a person or body specified in Schedules 1 and 2. 44 the Parchment

In reviewing the Bill the below is a useful summary of the key main points:

Functions of Agency The Agency has a wide variety of functions, which are consistent with its remit to bring to market large scale affordable housing. As such its powers include identifying suitable public lands for development, liaising with local authorities, providing or assisting with site infrastructural works, preparation of masterplans, planning permissions and to enter into commercial contracts and other arrangements (including joint ventures) with local authorities or other parties to meet its mandate. This includes for the establishment by the Agency of subsidiary Designated Activity Companies. The Agency may borrow money to a maximum of €1.25bn. The Agency will be able to obtain grants from the Minister, funding from the National Treasury Management Agency through the Ireland Strategic Investment Fund and loan facilities from the Housing Finance Agency.


Spring 2021 dsba.ie Godfrey Hogan is principal consultant at Reddy Charlton Solicitors

Services to Local Authorities The Agency can assist a local authority in relation to the development of sites that are large scale and located in the area of a town where the population is equal or greater than 30,000. Such services include site appraisals, preparation of masterplans, planning permissions, provision of infrastructure to service sites and provision of housing and cost rental housing. Where the Agency determines that it cannot provide the services sought by the local authority it is open to the Minister, upon receipt of a report from the Agency, to direct the Agency to provide the services requested by the local authority.

Register and Acquisition of Relevant Public Land by Agency The Agency shall establish and maintain a register of all relevant public land and land owned by the Agency. Members of the relevant public body shall co-operate with and provide every assistance to the Agency in the performance by the Agency of its functions relating to the relevant public land owned by the body. The Agency shall prepare and furnish a report to the Government on relevant public land and land owned by the Agency. A relevant public body shall not dispose of relevant public land unless the body has given the Agency notice and firstly offered the land for sale to the Agency. The Government may direct the Agency to acquire land contained in the Agency’s report.

Compulsory Purchase The Agency has power to acquire land compulsorily, to provide access to relevant public land or land owned by the Agency, or to facilitate provision of roads, water or other services or utilities required by

Property

housing on relevant public land or land owned by the Agency. This would require the Agency to apply to court for an acquisition order.

Requirement in Relation to Development of Dwellings on Relevant Public Land and Former Relevant Public Land A planning authority, or the Board on appeal, shall require as a condition to a grant of planning permission that the applicant enter into an agreement with the planning authority to provide for the building and transfer, on completion, to the ownership of the planning authority, or to the ownership of persons nominated by the authority, for the provision of cost rental dwellings or dwellings for sale, or to a combination of both, of dwellings comprising 50 per cent, or such other percentage as the Minister may prescribe. The price shall be below the prevailing market price or market rent. The Minister may, however, prescribe the price, or a method of calculating the price, and may include different prices and different methods according to different geographical or administrative areas.

It is envisaged that the Agency, through working with local authorities and other third parties, should help drive the development of new homes

Conclusion This Bill places large scale affordable housing at the heart of what it is seeking to achieve. It is envisaged that the Agency, through working with local authorities and other third parties, should help drive the development of new homes. Such a collaboration of the various stakeholders would be welcome, and represent an opportunity for all parties to pool together their resources towards tackling the housing shortage. It is expected that this Bill together with the recent Affordable Housing Bill 2020 should see an acceleration in the delivery of new homes. P the Parchment 45


When can a Bank Deponent be Crossexamined in a Debt Case? In a recent decision delivered on the 18th January 2021, the High Court considered and ultimately refused the plaintiff bank’s application for special leave to use their deponents’ affidavit evidence without producing the deponents for crossexamination. Stephanie Coughlan and Darryl Broderick consider the implications of the judgment of Mr. Justice Simons The Facts In the case of Allied Irish Banks Plc –v- Joe O’Callaghan, Anthony Peyton, Paddy Lawlor, Brendan Neligan, 2016 No. 1703S – the plaintiff bank (the “Bank”) issued summary judgment proceedings against the defendants in 2016 seeking to recover monies allegedly owed to it pursuant to a 2008 loan facility. In March 2017, it brought a motion seeking liberty to enter final judgment against the first, second and fourth named defendants. Judgment was entered against the third named defendant via the Central Office as he had not entered an Appearance. The fourth named defendant (the “Defendant”) filed two detailed affidavits seeking leave to defend the proceedings. A deponent on behalf of the Bank swore an affidavit in reply. Thereafter, the Defendant served a notice requiring the production of that deponent and another of the Bank’s deponents, for cross-examination pursuant to Order 37, Rule 2.2 of the Rules of the Superior Courts. This Rule further provides that if the deponent does not attend, his affidavit will not be used as evidence without special leave of the Court. In those circumstances, in March 2020, the Bank issued a motion seeking special leave of the court to use its affidavit evidence without producing either deponent for cross-examination. This motion was heard as a stand-alone application in December 2020, as a result of which this decision was delivered. The Bank had initially sought for this motion to be 46 the Parchment

heard together with their motion for judgment, but the Defendant successfully objected to the two matters being heard together.

The Affidavits The Defendant’s affidavits claimed that the loan facility had been granted to the defendants as a partnership, that the Bank were aware of this and were aware that the Defendant only held a 10 per cent shareholding in that partnership. In response, the Bank’s deponent averred that the Bank was a stranger to those allegations and that monies were advanced to the defendants on a joint and several basis. The Defendant’s affidavits further claimed that as a result of misrepresentations made to him by the Bank’s employees, he was induced not to sell his AIB shares and instead to secure them as repayment for the debt. The Bank’s deponent denied that any advice was given to the Defendant regarding the value of his shares and commented that such advice couldn’t have been given as shares by their nature, rise and fall. He further averred that there was no documentary evidence to show such advice had been given or that the Defendant was induced to provide the shares as security. The Defendant’s affidavits also complained about how the Bank dealt with the proposed sale of apartments erected on the mortgaged property. The Bank’s deponent denied that the delays in the sale were the fault of the Bank and asserted that they were due to the inability of the defendants to obtain vacant possession.


Spring 2021 dsba.ie Stephanie Coughlan is a solicitor at RDJ Solicitors. Darryl Broderick is a partner at RDJ Solicitors

Debt/Litigation

Decision Judge Simons, in refusing the special leave sought, found that the Bank’s affidavit consisted of “sweeping statements” that went well beyond commenting upon the content of documents exhibited in the proceedings and instead made a number of averments which contradicted what was in the Defendant’s affidavit. The court found that the Defendant was entitled to cross-examine both of the Bank’s deponents due to the link between the Bank’s two affidavits in terms of exhibited documents. Judge Simons, in making his decision, considered the case law relied on by Counsel for both parties (Ulster Bank Ireland Ltd v. Quinn [2015] IEHC 376 High Court / Danske Bank v. Connotes Ltd [2016] IEHC 183 and AIB v. Lynskey [2017] IEHC 197 High Court) and held: • That the paramount consideration for the court must be the interests of justice. • That it wasn’t necessary that the Defendant demonstrates prejudice in resisting the application for special leave. Cross-examination is intended as a protection for a defendant and there must be some justification for dispensing with this protection, for example if there is no conflict of fact on any issue relevant to determining the motion for judgment. • That Order 37 provides an opportunity for each party to test the other side’s affidavit evidence by cross-examination and this is particularly important where a defendant does not have the benefit of a plenary hearing. • That there was some merit in the Defendant’s submission that if he failed to seek to challenge the averments made by the Bank’s deponents by way of cross-examination this might go against him. In this regard Judge Simons seemed to agree with the decision in RAS Medical Ltd v. The Royal College of Surgeons in Ireland [2019] 1. IR63 which held that the onus is on the party wishing to urge a court not to accept affidavit evidence, to ask the court to take measures such as granting leave to cross-examine, so that the credibility or reliability of the evidence can be tested as to its accuracy.

Comment It is not uncommon, particularly in cases involving banks (the same could be said for financial institutions and funds) and lay litigants, for defendants to seek to cross-examine a bank’s deponent. This is often done as a tactic to delay the proceedings and/or to increase costs for the bank involved. However, this decision should not cause undue concern for banks, financial institutions and funds as it doesn’t change the position as regards Notices to Cross -Examine that are served by defendants where there is no conflict of fact. In such a case an application can still be made to set aside a Notice to Cross-Examine. Courts have shown themselves to be willing to set aside such Notices where there is no conflict of fact and/or the Notices are spurious. In a decision delivered by Judge McDonald of the High Court on the 15th June 2018 (PTSB v Donohoe 2018 IEHC 355) he set aside a Notice issued by a lay litigant defendant in possession proceedings. Judge McDermott of the High Court had previously set aside a similar Notice issued by the defendant in the

same matter where he saw no factual issue relevant to the proceedings that needed to be determined. Judge McDermott described many of the issues raised by the defendant as “vexatious, frivolous and scandalous” and found that they should not be the subject of crossexamination of the bank’s deponent in that case. Judge McDonald, in setting aside the subsequent Notice, acknowledged that cross-examination can be crucial to resolve material conflicts in the absence of a plenary hearing but that in order for the right to crossexamine to arise, there must be a conflict of evidence in relation to a material or relevant issue. Even where there are inconsistencies between a deponent’s affidavits / affidavits sworn on behalf of the same party, cross-examination will only be necessary where those inconsistencies relate to a material issue. In considering each of the alleged inconsistencies relied on by the defendant in that case, Judge McDonald found that there were no material inconsistencies between the affidavits filed by the bank’s deponent, that no material issues arose, that there was no benefit to cross-examination and that certain documents could be relied on to clarify certain issues. Despite the option to remit to plenary hearing being present in most summary summons cases, Judge Simons’ decision highlights that Order 37 does expressly provide for cross-examination if required in summary cases and care needs to be taken by deponents to avoid making any sweeping statements or they run the risk of being requested to come before the court to be cross-examined. In order to place oneself in the best position to defeat a Notice to Cross-Examine, deponents should, particularly where they do not have firsthand knowledge of the ins and outs of the lending relationship between the parties, be careful to avoid blanket denials of alleged facts raised in the other side’s affidavit and focus on exhibiting and commenting on documentation held on the bank’s file which supports its position. This is particularly important in respect of “material” issues that need to be determined by the court in order to make a decision. P

Even where there are inconsistencies between a deponent’s affidavits / affidavits sworn on behalf of the same party, crossexamination will only be necessary where those inconsistencies relate to a material issue

the Parchment 47


DSBA Responds to Family Law Reforms Keith Walsh says that the publication of the Heads of the Family Law Courts Bill in September 2020 and the creation of the Family Justice Oversight Group mean that long overdue reforms are coming to family law. In this article he sets out the main reforms and examines the DSBA’s response

I

t is likely that the Family Law Courts Bill may prove to be the catalyst for very significant change in the family law justice system in both the short and long term, provided it is properly resourced. The heads of the Family Law Bill propose the following major changes: 1. The introduction of a new Family Law Courts division of specialist judges which will sit within the existing structures but with its own special rules of court. 2. More emphasis on ADR (Alternative Dispute Resolution) and effective court processes 3. The elimination of the High Court jurisdiction in cases of Judicial Separation, Divorce, Civil Partnership, Cohabitation and other private family law disputes. 4. The introduction of the District Court to deal with cases of Judicial Separation, Divorce, Civil Partnership, Cohabitation. Running alongside the progression of the new heads of the bill, the Department of Justice has set up a Family Justice Oversight Group chaired by a senior civil servant from the Department of Justice and composed of a number of judges, Courts Service staff, Legal Aid Board staff and civil servants from the Department of Children and Youth Affairs. This Group, which does not contain any representatives from the Law Society or Bar Council, will drive the implementation of change within the family justice system. In the past four weeks the DSBA, Law Society and Bar Council and many other groups have made detailed

48 the Parchment

submissions to both the Joint Oireachtas Committee on Justice and the Family Justice Oversight Group in relation to the reform of the family justice system. In this article we will examine the main points highlighted by the DSBA in its submission to the Joint Oireachtas Committee on Justice. The DSBA in its submission on the heads of the Family Courts Bill: • Welcomed some of the reforms but called for the immediate commencement of work on the Hammond Lane facility and the application of sufficient resources to any new system of family law, failing which the reforms would not succeed. • Welcomed the emphasis on mediation but warned of the unsuitability of cases involving domestic violence for mediation and proposed that greater weight should be given to ADR generally and not simply mediation. • Called for a reduction in the VAT rate for all mediators and family lawyers. • Advocated for more consultation before the jurisdictions of the High, Circuit and District Court were changed or before the Court areas and Districts were amalgamated as proposed into new geographical areas. • Set out detailed arguments why the current jurisdiction of the High Court should not be changed for family law cases such as the importance of judgments and the development of legal principles and guidance provided by the High Court in divorce and judicial separation cases at present,


Spring 2021 dsba.ie Keith Walsh is a family law solicitor, mediator and collaborative lawyer

the qualitative difference between the High Court and Circuit Court with particular emphasis on the complexity of current High Court family law cases. The DSBA echoed the cautionary stance of the Law Reform Commission in its Consultation Paper on the Family Courts, 1996 when it warned that the creation of a Family Court must be conditioned by considerations of what is constitutionally permissible in the light of Article 34.3.1 [re the High Court’s importance as a court of first instance] and as understood from the judgments in R v R and Tormey v Ireland. • Other concerns expressed by the DSBA regarding the proposed removal of the High Court jurisdiction: i. Loss of specialised High Court judges who could examine matters with more time and in greater detail than that available in the Circuit Family Court. ii. Cases which exceed €3 million [the current jurisdictional limit of the Circuit Court] are different to most ‘regular’ Circuit Family Court cases and to include them with the more limited cases will result in greater delay in the Circuit Court for all litigants in the Circuit Court. iii.The loss of High Court guidance in dealing not only with the ‘big money’ cases but also in developing principles for all judicial separation, divorce, cohabitation and family law cases. iv. A one size fits all approach will not adequately deal with the regular cases and the bigger money cases as the case management will need to be different,

Family Law

the periods of disclosure will need to be different. • The DSBA submitted that the District Court was not the correct Court to deal with applications for Judicial Separation and Divorce and ancillary relief for a number of reasons: The District Court has always been a court of limited and summary jurisdiction. It already is overstretched with the current number of family law cases before it. The most recent Court Services Report [2019] revealed the following numbers of cases initiated in the District/Circuit/High Court in relation to family law in 2019: Matter Guardianship, custody, access Maintenance Domestic violence Supervision and Care Orders Other Judicial Separation Divorce Cohabitation Dissolution Civil P’ship Child Abduction Adoption Nullity European Payment Order

District Circuit 12,582 no figures 8,383 no figures 20,501 no figures 10,244 n/a 3,669 173 n/a 1206 n/a 4050 n/a no figures n/a 36 n/a n/a n/a n/a n/a 27 n/a n/a

High no figures 3 no figures 67 71 23 23 8 0 34 24 2 96

Total

51,757

351*

7,339

the Parchment 49


If we wait for the system to change, for Courthouses to be built, for resources to be granted, the family law system of justice will never change

50 the Parchment

*no specific figures are provided for appeals from the Circuit Court to the High Court in family law cases [While these figures deal with the number of family law cases initiated in each court in 2019 they do not specify the numbers of cases dealt with; however, they give a good indicative view of the volumes of cases in the District, Circuit and High Court] • Following feedback from DSBA members practising in the District, Circuit and High Court in family law, as well as from the figures set out above, the DSBA submitted that:The District Court was already under severe pressure based on the huge volume of cases it is currently handling. This is likely to increase further post pandemic due to: i. the backlog of less ‘urgent’ cases which have not been dealt with and ii. the recent upsurge in domestic violence applications. iii.suppressed demand due to litigants in person for access, custody, guardianship, maintenance, domestic violence applications being reluctant to leave their residences to travel to court or to even initiate the process. It is thus likely there will be a surge in applications initially as the schools return and then when the economy opens up. While this is true of all courts, the District Court will be hit hardest due to the already large volumes of cases. • Putting more cases into an already under resourced and oversubscribed District Court system was likely to increase the problems and not reduce them. • It was submitted that there was no valid reason for the jurisdiction of the District Court to be extended to deal with Judicial Separation or Divorce cases whether on consent or otherwise. It would only make a bad situation worse. • Historically, resources have not been provided for the District Court to deal with additional jurisdiction being granted to it – e.g. the changes introduced by the Child and Family Relationships Act, 2015, which increased the involvement of assessors and resulted in cases which normally could be dealt with on one hearing date taking two and three hearing dates, has resulted in a greater number of applications.

• The Law Reform Commission in its Report on the Family Courts in 1996 reached conclusions which remain relevant today at paragraph 4.19, p. 29: “Fundamental issues relating to the status of persons are not appropriate for determination at District Court level. Some further explanation is required. It was not intended to suggest that District Judges lack the qualifications or capacity to make such decisions. Indeed it is important to recognise that, in the context of child protection and domestic violence, the District Court already has powers to make far-reaching decisions which may indeed have a fundamental and long-term impact on family members and their relationships. However, we remain of the view that, as long as the District Court remains a court of “summary jurisdiction” with considerable limitations in its jurisdiction generally (i.e. not only in relation to family law), it would appear, to say the least anomalous to confer upon it a comprehensive family law jurisdiction. Further, given the status and the high level of protection guaranteed to the family and its members, especially under Articles 41 and 42 of the Constitution, it would be objectionable to confer a comprehensive jurisdiction in respect of family law matters on a court of summary jurisdiction. On the other hand, it should be noted that the legislature has already gone far in the extent of the family law jurisdiction which has conferred on the District Court.” The LRC concluded at paragraph 4.20 p29 that there was much to be said for a unified family courts system which draws on the resources of both courts. However the DSBA noted that this was not what was proposed in the Family Courts Bill. The Law Reform Commission concluded that remedies such as divorce, annulment or judicial separation should not be made available at the level of a court of summary jurisdiction. The theme of the submissions by the DSBA in relation to reform of the family law justice system could be articulated as follows: if we wait for the system to change, for Courthouses to be built, for resources to be granted, the family law system of justice will never change. The DSBA has made, over the years, and particularly in February 2021, a number of concrete, reasonable proposals which will improve the family law system of justice and the DSBA asked the Department of Justice to implement these necessary changes immediately. The commencement of consultation with stakeholders including the DSBA in relation to the current plan for Hammond Lane needs to start given the variety of changed premises that have been announced in recent years. The provision of proper short term alternative courthouses pending the completion of Hammond Lane needs to happen as soon as possible. The current system of accommodation of family law courts is not fit for purpose in Dublin. Hammond Lane needs to proceed. Family lawyers, court staff, judges, witnesses and litigants have been waiting in unsuitable court accommodation for over seven years now. P The DSBA submissions were prepared by DSBA Family Law Committee chaired by Avril Mangan and with contributions from Keith Walsh.


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Workplace Bullying - a new Code of Practice The Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020 (the “Code”) was jointly published recently by the Health and Safety Authority (“HSA”) and the Workplace Relations Commission (“WRC”). In this article Seamus Given and Mary Heavey take a closer look at the key aspects of the Code

T

he Code is effective from the 23rd December 2020. It replaces the two previous codes that had established employers’ obligations in relation to workplace bullying (namely, the “Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work” issued by the HSA in 2007; and the “Code of Practice Detailing Procedures for Addressing Bullying in the Workplace” issued by the then Labour Relations Commission in 2002). Now, employers and employees’ obligations in relation to the prevention and resolution of workplace bullying under both health and safety legislation and workplace relations legislation are contained in the Code. The Code stresses that “bullying” and “harassment” remain two distinct concepts and the Code solely addresses the question of workplace bullying. That stated, the Code notes that an employer can have one policy document containing its policy and procedures in relation to both bullying and harassment.

Definition of “Bullying at Work” The Code retains the definition of bullying as contained in previous codes. Bullying is defined as “repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could be reasonably regarded as undermining the individual’s right to dignity at work”. Therefore, in order to be considered as workplace bullying, the conduct must be: 1. repeated; 52 the Parchment

2. inappropriate; 3. workplace connected i.e. at the place of work and/or in the course of employment; and 4. “reasonably regarded as undermining the individual’s right to dignity at work”. The Code elaborates on these elements. It describes bullying in terms of “seriously negative targeted behaviours”, and this behaviour must “undermine their esteem and standing in a harmful, sustained way”. It further states that the behaviour must be “clearly wrong, undermining and humiliating”. Moreover, in determining if the conduct is bullying, the “‘reasonableness’ of behaviours over time must be considered”. The Code must be read in light of Ruffley v Board of Management of St Anne’s School [2017] IESC 33, a decision of the Irish Supreme Court which addressed the various components of the definition of workplace bullying. In Ruffley, O’Donnell J noted that in order to be considered workplace bullying, “conduct must be repeated, not merely consist of a number of incidents; it must be inappropriate, not merely wrong; and it is not enough that it be inappropriate and even offensive: it must be capable of being reasonably regarded as undermining the individual’s right to dignity at work.” Furthermore, in addressing whether the behaviour constitutes “repeated” behaviour for the purposes of workplace bullying, O’Donnell J stated that “What must be repeated is inappropriate behaviour undermining the personal dignity of the individual.” On the question of “inappropriate” behaviour, he noted that this test “looks to the question of propriety in human relations, rather than legality.” Furthermore, O’Donnell J stressed that “dignity at work” is a distinct component of workplace


Spring 2021 dsba.ie Seamus Given is a partner and Head of the Employment Group at Arthur Cox. Mary Heavey is an associate in the Arthur Cox Employment Group

bullying which “identifies the interests sought to be protected by the law, and just as importantly limits the claims which may be made to those which can be described as outrageous, unacceptable, and exceeding all bounds tolerated by decent society.” It is evident from both the Code and the Ruffley case that it is not sufficient for the behaviour to merely be repeated and inappropriate. The inappropriate nature of the alleged behaviour must meet a certain minimum threshold if it is to constitute bullying. Interestingly, the Code also provides clarity on what is not bullying. It notes that while disrespectful behaviour, conflicts and relationship breakdowns are not ideal in the workplace, they do not automatically reach the “adequate level of destructiveness” to be considered bullying. The Code provides a non-exhaustive list of what is not bullying, which includes: • strongly expressing differences of opinion; • offering constructive feedback, guidance, or advice about work-related behaviour, which is not of itself welcome; and • ordinary performance management.

Employer’s Role The Code identifies three key aspects to an employer’s role in effectively managing workplace bullying, namely: • to act reasonably to prevent workplace bullying patterns developing and to resolve complaints, which includes assessing the complaint, recording actions and putting in place a suitable response

based on each case arising; • to prepare a Safety Statement under section 20 of the Safety, Health and Welfare at Work Act 2005 (the “2005 Act”); and • to develop a proper workplace anti-bullying policy, in consultation with employees.

Employee Obligations Employees have an obligation to “create a co-operative relational climate” and to relate in “clear, civil and respectful ways to everybody in the workplace”. They also have statutory obligations under section 13 of the 2005 Act, which requires employees, for example: • to comply with relevant statutory provisions and take reasonable care to protect their own safety, health and welfare and that of any other person who might be affected by their act or omissions; • to co-operate with their employer to enable their employer comply with its statutory obligations; and • to not engage in any improper conduct that is likely to endanger their own safety, health and welfare at work or that of anyone else.

Resolving Bullying at Work A key focus of the Code is the resolution of bullying in the workplace through informal means. The Code notes that the prompt and informal problem-solving approach can offer the best method for addressing allegations of bullying effectively, especially where the individuals involved will continue to work together. To that end, the Code introduces the concept of an “initial informal process” and a “secondary informal process”. The concept of a “secondary informal process” is entirely

Employment Law

The Code notes that the prompt and informal problem-solving approach can offer the best method for addressing allegations of bullying effectively, especially where the individuals involved will continue to work together

the Parchment 53


new and accordingly introduces what might be termed a three-stage process of resolution – an initial informal process, a secondary informal process and a formal process.

Employers are reminded that their obligations under the Code apply irrespective of whether employees are based at a fixed location, at home or are mobile

Communication of Outcome The Code notes that the effective communication of any outcome is critical to the resolution process. Communication must be done in a sensitive and fair manner. All parties directly involved in the complaint are entitled to know if the complaint was upheld in whole or in part, and the reasons for any such decision. However, specific details regarding any disciplinary action being taken against any particular party on foot of the process are confidential. Other parties are not entitled to receive this information as part of the communication of the outcome.

Principles of Fair Procedure and Natural Justice The Code enshrines the principles of fair procedure and natural justice in the formal process, by expressly providing for the following: 1. right to representation: the Code provides that “A work colleague or employee/trade union representation (provided the person has representation in line with the principles of natural justice and fair procedure) may accompany the complainant and the person complained of, if so desired.” It is notable that no provision is made for parties to be accompanied by lawyers; and 2. right of appeal: the Code provides that both parties have the right of appeal within the formal process, this right appearing as a pre-disciplinary right of appeal in the case of a respondent where the investigation upholds the complaints. Furthermore, it should be noted that any such appeal is not an appeal on the merits or a de novo hearing. The Code states that any such appeal “should focus on the conduct of the investigation in terms of fair process and adherence to procedure. It should be noted that an appeal is not a re-hearing of original issues.” Therefore, any appeal must relate to process and procedure grounds. The Code notes that the “outcome of the appeal shall be final insofar as the employer duties under health and safety legislation is required”. However, surprisingly, the Code does not address what will happen if an appeal is upheld. Presumably, in such circumstances, the appeal outcome might be that the matter should be re-investigated. Accordingly, it follows that in those circumstances the outcome of the appeal is not “final” insofar as the employer is concerned.

A Malicious Complaint The Code also addresses the making of a malicious complaint, being “an allegation being made without foundation, and with malicious intent, where a person knowingly or without regard to whether it is true or not, accuses another person of allegedly bullying them”. Such complaints can have significant consequences in terms of reputational damage to the accused, and may result in disciplinary action being brought against any employee making such complaints.

Role of the HSA and the WRC The Code elaborates on the role of both the HSA and WRC in relation to the processing of complaints and the 54 the Parchment

prevention of bullying in the workplace. The HSA, operating under the statutory powers of the 2005 Act, has the ultimate aim of protecting employees through overseeing the employer duty to provide a safe workplace and system of work. One aspect of this is through its operation of the Workplace Contact Unit (the “WCU”). Employees who consider themselves to be bullied can submit a complaint to the WCU about the way in which their employer handled their complaint, or seek further information in relation to their treatment. The HSA can ultimately assesses the employer’s processing of the complaint to determine if their actions were adequate. In circumstances where it determines that an employer has failed to act reasonably in relation to a complaint of bullying, the HSA can issue enforcement action ranging from verbal advice to an Improvement Notice. The Code clarifies that the HSA has no role in relation to disciplinary action or in relation to conflict resolution between parties to a bullying complaint. The objective of the WRC, as noted by the Code, is “to achieve harmonious working relations between employers and employees”. It offers a range of services that may assist in the resolution of workplace bullying, such as individual and collective workplace mediation and an overall review of workplace relations generally. Furthermore, per section 13 of the Industrial Relations Act 1969, a matter can be referred to the WRC for adjudication, after internal processes have been exhausted. Any such referral for adjudication relates to the conduct of an investigation on grounds of fair process and procedure.

Key Considerations for Employers • Employers are reminded that their obligations under the Code apply irrespective of whether employees are based at a fixed location, at home or are mobile. Furthermore, the Code expressly provides that bullying can occur through digital or cyber means. Therefore, employers still have obligations to prevent workplace bullying, even in circumstances where the majority of their workforce might not be physically present in the workplace; • Employers are advised to review and update their antibullying policies to bring them in line with the Code; • It is also recommended that employers take pro-active steps to promote a positive workplace culture. This includes effectively developing and promoting their anti-bullying policies, training staff appropriately on these policies and ensuring all complaints are dealt with respectfully, sensitively and in complete confidence; • Employers are further advised to attempt to effectively resolve complaints though informal mechanisms, if possible. Employers should take steps to ensure complaints of bullying are fully and effectively resolved on a long-term basis. This can be achieved through, for example, ongoing monitoring, team building exercises or specific anti-bullying awareness programmes; and • Failure to adhere to the Code is admissible in evidence in any criminal proceedings under the 2005 Act. Furthermore, the Code is admissible in any proceedings before a court, the WRC or the Labour Court, in accordance with the Industrial Relations Act 1990. P


Spring 2021 dsba.ie Anne Lyne is a partner with the Employment Team at Hayes Solicitors. Mary Gavin is an associate at Hayes Solicitors

Employment Law

Parent’s Leave - v - Parental Leave Anne Lyne and Mary Gavin examine both Parent’s Leave and Parental Leave and identify the key differences

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he concept of Parent’s Leave was introduced in The Parent’s Leave and Benefit Act 2019. Before the Act was introduced, parents had to rely on Parental Leave as the basis for taking time off to look after young children after the paternity/ maternity/ adoptive leave period expired. Although the intention in both Parent’s Leave and Parental Leave is broadly similar, the leave entitlements are different. The key difference is that Parent’s Leave is paid by the State whereas Parental Leave is unpaid. Currently in Ireland it is not usual for employers to cover the pay for employees for either leave but some companies do have contractual policies to support paid leave for parents. We set out below the key legislative differences for each leave:

Parent’s Leave • Parent’s Leave applies to parents of a child born or, if adopted, placed, after 1 November 2019 • Currently amounts to two weeks’ leave to be taken within the child’s first year of life or placement • Minister for Children Roderic O’Gorman said he hopes legislation will be passed in the Oireachtas by April 2021 to expand leave to five weeks and to amend the period within which it may be taken to the first two years of life/placement • Currently, Parent’s Leave can be taken as one continuous period of two weeks or separate periods of not less than one week • The entitlement to Parent’s Leave cannot be transferred between parents except for in exceptional circumstances, such as the death of a parent • An employer may, with consultation and notice to the employee, postpone the request to take the leave for a period of 12 weeks • The leave period remains the same even in the case of multiple births/placements • Parent’s Leave is unpaid by an employer, but parent’s benefit is payable for the period • Entitlement to parent’s benefit, i.e. paid leave is dependent upon PRSI contributions and is currently paid at a rate of €245 per week by the Department of Social Protection

Parental Leave • Relevant legislation dealing with parental leave is the Parental Leave Acts 1998 to 2019 • Applies to parents/adoptive parent/person acting in loco parentis of a child under 12 years old or 16 if the child has a disability • An employee is entitled to take 26 weeks leave per child • An employee must have one year’s continuous service with their employer or at least three months’ service where the entitlement to take the leave is expiring • Leave can be taken as one continuous period or, separate blocks of a minimum of six weeks each, or, as agreed with the employer • An employer may, with consultation and notice to the employee, postpone the request to take the leave for a period of six months • Parental leave is not paid by the employer and there is no entitlement to benefit from the Department of Social Protection Employers should review their policies and ensure that their employees are aware of how to access these entitlements and the process to follow. An employer is required to keep records of the leave taken and should be prepared to amend their policies when the Parent’s Leave entitlement is extended within the coming weeks. P

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The Climate Action Bill Seanna Mulrean says that The Climate Action and Low Carbon Development (Amendment) Bill 2020 is a major piece of potential legislation which is of key relevance to Irish businesses and investors

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ollowing on from the recent EU announcements on the Green Deal the Bill represents a significant shift in the governance arrangements for Ireland’s compliance with its legal obligations under the Paris Agreement and EU law to decarbonise the economy by 2050. When launching the Climate Action Bill last October, Taoiseach, Micheál Martin TD described it as “ground-breaking” and said that it would have a “transformative impact on our society and economy into the future”. The Bill, once enacted, will introduce measures to ensure that climate action is no longer a matter which is solely of a policy related nature. It will instead become a domestic legal obligation which will affect every aspect of the Irish economy and society. All Irish businesses are likely to be impacted by this potential legislation. Considering Ireland’s emissions profile, it is expected that the Bill, once enacted, will particularly affect those operating in the transport, built environment, agri-foods, and energy sectors.

The Key Features of the Bill are as Follows: • It provides for an obligation on the State to pursue the transition to a climate neutral economy by 2050. The Bill defines this “climate neutral economy” as “a sustainable economy where greenhouse gas emissions are balanced or exceeded by the removal of greenhouse gases”. • The Bill introduces arrangements designed to endure successive changes in Government, ensuring that at all times there remains a legal obligation on the State and its institutions to pursue the transition to a climate neutral economy. • It introduces a system of three successive five-yearly, economy-wide carbon budgets commencing in 2021. These budgets will set the limits on the total amount of greenhouse gases that can be emitted 56 the Parchment

within the State during the relevant five-year period. The Bill will include provision for sectoral Emissions Budgets. The exact detail of the Carbon Budgets is not described in the Bill but will likely be informed by the stated aim of reducing Ireland’s greenhouse gas emissions by, on average, at least 7% per annum for the next 10 years. The 2015 Climate Action and Low Carbon Development Act’s National Mitigation Plan, which was quashed by the Supreme Court in June last year for lack of specificity in its measures to achieve the 2015 Act’s objectives is to be replaced with an annually revised Climate Action Plan from 2021 together with a 10 year National Long-Term Climate Action Strategy. It enhances the Climate Change Advisory Council by setting it up on a statutory basis. The Council will have responsibility for proposing Carbon Budgets. It proposes to require each Local Authority to produce its own Local Authority Climate Action Plan, detailing mitigation and adaptation measures at least once every five years. Each Local Authority will be required to take into account the most recently approved National Long-Term Climate Action Strategy, the National Adaptation Framework and must align its plan with neighbouring Local Authorities through consultation and co-operation. It is envisaged that the draft proposed Local Authority Climate Action Plan will then be circulated in the area for submissions from the public and then – following a review – be published. The Minister may issue guidelines to Local Authorities in respect of the content and preparation of Local Authority Climate Action Plans. It strengthens Oireachtas oversight and accountability to the extent that an Oireachtas Joint Committee would be appointed to consider


Spring 2021 dsba.ie Seanna Mulrean is a consultant in the Corporate and Commercial Department in LK Shields. She is a member of the Projects and Construction team at the firm

each Carbon Budget. Each Minister would be accountable to that Committee on an annual basis for performance against targets. • The Bill provides for the concepts of “banking” and “borrowing”. Where a sector comes within its allocated Emissions Budget the surplus emissions can be carried forward for use in successive Budgets. Where a sector exceeds its allocated Emissions Budget then there will be provision to borrow from subsequent Budgets but only up to a maximum of 1% of the total Carbon Budget. This limit is imposed as an unlimited ability to borrow from future Carbon Budgets could compromise the policy behind the legislation.

Opportunities and Challenges While the proposed legislation is likely to introduce new challenges for Irish businesses, it will also create significant opportunity. It is expected, for example, that the Bill will result in an acceleration of investment into renewable energy development. In relation to the Bill, the Minister for Climate Action, Communication Networks and Transport, Eamon Ryan TD, stated that “the Climate Action Bill… will change how we heat our homes, generate power, move around our country, grow our food and run our businesses. I believe it also creates great opportunities for Ireland to be a leader in renewable power, repair and retrofitting, sustainable agriculture and the circular economy”. Many businesses in Ireland have already been quick to adapt and embrace the ongoing drive to decarbonise the economy. The rising trend of corporate power purchase agreements and increasing numbers of Irish companies switching to renewable energy sources to power their businesses is illustrative of this. From an energy perspective this has been assisted by the rise in renewable energy generation and declining renewable energy prices in Ireland.

Technology and innovation will also have a key role to play in the move to a carbon neutral economy. The use of sustainable, durable building materials, the internet of things and the use of smart technologies is already influencing the construction sector and is transforming building energy and utilities management in Ireland. Similar climate action initiatives and innovations are increasingly evident in the agri-foods sector. With potentially more specific decarbonisation targets in place, it is likely that the proposed legislation will impact on the procurement of public contracts. Sustainability is a core feature of the mission statement of Transport Infrastructure Ireland, the semi-state body responsible for developing and maintaining and operating national road, light rail and metro networks in Ireland. Like many other state and semi-state bodies in Ireland, green procurement, energy efficiency and climate change are already key to the manner in which it procures goods and services. While there are currently no indications that green public procurement will become mandatory, it is arguable that such a policy could add efficiencies and assist in achieving Ireland’s ambitious goals. It is certainly likely that greater focus and weighting will be given to sustainability and decarbonisation solutions in assessment criteria for the tender of public contracts in Ireland. Given the proposals contained in the Bill regarding the role and obligations of Local Authorities, this is likely to be the case regardless of the size or value of the relevant contract. The Bill is currently undergoing pre-legislative scrutiny and it is hoped that it will be enacted by the end of this year. Considering its potential impact, Irish businesses and investors would be wise to closely track the progress of this proposed legislation and all relevant sectoral targets. The winners will be the early adapters and innovators. P

Climate Change

The Climate Action Bill…will change how we heat our homes, generate power, move around our country, grow our food and run our businesses

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Update from DSBA Property Committee Welcome to the very first DSBA Property Committee update. We set out below some news, helpful pointers and we recall the passing of a conveyancing legend – the late Colm Price

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n these challenging times, it always helps to have a colleague that you can turn to with a query. It is also much more difficult to share experiences and tips, which is surprising when there is so much information at our fingertips. This is what we greatly miss. We would like this to be your “go to resource” for this information. In each edition of the Parchment, we will bring this information directly to you. If you come across something that you think may be of use or interest to your colleagues, please send it to us at Maura@dsba.ie. We would be delighted to hear from you. We are also very aware of the fact that the current restrictions are challenging to us all from a mental health point of view. Never has it been more important to mind ourselves and each other. We would be delighted to hear from you if you have any tips to share with us. So grab a coffee, pull up a seat and enjoy the pieces below. See you soon. The DSBA Property Committee

AML Reliance Letters The Property Committee wishes to draw attention of its members to requests from third party debt servicing agents seeking AML (Anti Money Laundering) reliance letters from a purchasing solicitor on a sale managed by that agent. Practitioners need to exercise caution when requested to provide such certifications. The types of certifications sought can be • Confirmation that no disciplinary action exists against the firm; • Compliance and adherence with AML legislation; • A positive obligation to hold Customer due diligence documents for purchaser client for at least 5 years post completion and provide copies to such agent on request; 58 the Parchment

• Confirmation that purchase source of funds are not the product of improper or illegal activities. The Committee’s view is that such confirmations should be strongly resisted. It is a matter for the agent to deal with such items at the outset of the transaction through the sales agent appointed on its behalf in direct consultation with the purchaser.

Are you Lodging a Lease for Registration in the Property Registration Authority? If so, please ensure that you comply with Property Registration Authority (PRA) administrative requirements. Enclosed is a list of the most common queries raised on this type of application: ✓ Lodge an assent from the Lessor/Registered owner – PRA Form 48 ✓ Lodge an E. Revenue Certificate to facilitate the Lease lodged with the application or alternatively please show how the deed is exempt from stamping ✓ Certify that the signatories to the execution are authorised signatories under Section 32(6) of the ICAV Act 2015 ✓ Lodge a PRA compliant map ✓ Lodge a copy of the most up-to-date scheme map identifying the unit and bearing a current Land Registry approval stamp (when lease is part of a scheme e.g. shop unit in multi storey building) ✓ In relation to the witnesses to the company seal please specify the status of the signatories (e.g. director/secretary). Please confirm the positions held as per Rule 74 (4) of the Land Registry Rules ✓ Lodge a PRA Form 2 if the lease comprises unregistered property ✓ Lodge a Certificate from the solicitor for the lessor confirming that it is the intention to demise all of Folio DN XXXXX in the lease (if applicable)


Spring 2021 dsba.ie

DSBA Property Update

First Registration - Form 3 - Signature Just to note, for colleagues using the Form 3 process, that the Property Registration Authority requires that the actual solicitor who acted for the applicants sign the Form 3 as opposed to any solicitor within the firm instructed by the applicants in the purchase. This can be problematic if the solicitor who acted moves firms, is sick or retires. Rule 19 (3) of the Land Registry Rules states that the Form 3 must be signed by a solicitor but isn’t any more prescriptive than that. We propose to query this requirement with the PRA and will post any update here when we have it.

Sustainable Drafting With Climate Change to the forefront of most people’s thoughts there are moves within the profession to consider how documents can be drafted with sustainability in mind. Two of our committee members are involved with The Chancery Lane Project (along with other colleagues throughout Ireland and the UK) to examine and draft lease clauses initially that can be used and adapted in the future. We would expect that these will filter through to the profession in the short term and would encourage you to watch this space.

Colm Price – A Personal Recollection As a very green apprentice solicitor on the second day of his apprenticeship (before even knowing where Blackhall Place was) my “master” asked me to attend at the closing of a sale as he had to attend to an urgent matter elsewhere. He rang the vendor’s solicitor and explained the situation and my rawness. That vendor’s solicitor was Colm Price and I arrived at his office armed with a file and two Bank Drafts. Colm sat me down on the opposite side of his desk and walked and talked me through every element of the conveyance and the closing and explained in detail what each document was and why I needed it. I was, and to this day remain, grateful that a colleague as esteemed as he was in conveyancing matters, would take the time to teach and help a colleague. He saw it as an opportunity to pass on his expertise and teach one of the next generation. He could have used the opportunity to simply give me a bundle of documents with explained searches and keys, and take the draft and assure me all was in order, as it would have been. Instead he gave of his time and experience very generously and it has always stayed with me as an example for all of us. Ar dheis Dé go raibh a anam dílis. RMcL

Managing precious Time Imagine you had a bank account that deposited €86,400 each morning. The account carries over no balance from day to day, allows you to keep no cash balance, and every evening cancels whatever part of the amount you had failed to use during the day. What would you do? Draw out every euro each day! We all have such a bank. Its name is Time. Every morning, it credits you with 86,400 seconds. Every night it writes off, as lost, whatever time you have failed to use wisely. It carries over no balance from day to day. It allows no overdraft so you cannot borrow against yourself or use more time than you have. Each day, the account starts fresh. Each night, it destroys an unused time. If you fail to use the day’s deposits, it is your loss and you can’t appeal to get it back. There is never any borrowing time. You cannot take a loan out on your time or against someone else’s. The time you have is the time you have and that is that. Time management is yours to decide how you spend the time, just as with money you decide how you spend the money. It is never the case of us not having enough time to do things, but the case of whether we want to do them and where they fall in our priorities. P the Parchment 59


JUSTICE PLAN 2021 Minister for Justice, Helen McEntee, has published a Justice Plan 2021, which is the first of a series of annual plans that the Department of Justice has stated that it intends to roll out to drive reform of the justice sector. The 2021 Plan identifies 240 individual actions which the Department proposes to take during the course of the year with the stated objection of building “a justice system that works for everyone”. The 2021 Plan will be implemented in conjunction with the Department’s three year Statement of Strategy and has identified five key goals, as follows: 1. Tackling crime, enhancing national security and transforming policing; 2. Improving access to justice and modernising the court system; 3. Strengthening community safety, reducing reoffending, supporting victims and combating domestic, sexual and gender based violence; 4. Delivering a fair immigration system for the digital age; 5. Accelerating innovation, digital transformation and climate action across the justice sector. The initiatives to improve access to justice

and to modernise the Court system will include: (i) Opening up legal education and removing barriers to people becoming solicitors and barristers; (ii)Allowing for greater diversity across the justice system; (iii)Publishing a new Bill to modernise and update Ireland’s licensing laws; (iv)Appointing a CEO of the new Gambling Authority to help prepare the way for a new Regulator; (v) Beginning detailed work on a new system for guidelines for legal costs to help bring costs down and to provide greater transparency on legal fees. The proposal to introduce guidelines for legal costs is stated to be in support of the objectives of (i) reducing legal costs (ii) reducing the length of legal proceedings and (iii) tackling the high cost of insurance. The 2021 Plan proposes that a detailed examination of the recommendations contained within what is referred to as “the Peter Kelly report” on legal costs be commenced in Q1 2021. As part of that work, the Department proposes to carry out a detailed economic and legal evaluation, which

will include examining making such scales binding, except when both parties agree to opt out. This work is scheduled to be completed by Q4 2021. Rather oddly, the text of the plan uses the terms “guidelines” and “scales” interchangeably. The 2021 Plan also intends to examine and give effect to the government commitment on the feasibility of obliging fraudulent claimants to pay the legal costs of defendants, along with reviewing and increasing the penalties for fraudulent claims by Q3 of 2021. Reform on legal costs is a theme echoed in the recent Review of the Administration of Civil Justice chaired by former President of the High Court, Justice Peter Kelly. Both Justice Kelly and the Minister share the view that legal costs in this jurisdiction represent a barrier to access to justice and remain too high. Just how successfully these strands can be woven together remains to be seen. That said, the reform of legal costs is clearly on the Government agenda. Killian O’Reilly Fieldfisher Solicitors

COMPLAINTS AGAINST PRACTITIONERS Please note that pursuant to Section 51(2) of the Legal Services Regulation Act 2015, anyone may make a complaint about a solicitor’s professional conduct to the Legal Services Regulatory Authority (LSRA). This means that someone who is not your client and who may not even be involved in any legal case with your office can make a complaint against you, and you will have to reply to that complaint. To show you some of the examples as to how this has operated, I have spoken to certain

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colleagues about complaints that have recently been made against them. Colleagues might please note the following: 1. One complaint involved the settlement of a personal injuries action. The client accepted a settlement offer in the Four Courts, in the presence of the plaintiffs. A document was drawn up confirming her acceptance which she signed on every page. She subsequently rejected the settlement and made a complaint against her solicitor. The complaint was deemed inadmissible as it was deemed to be without substance or foundation pursuant to 50 (8) of the Act. However, it had to be answered and had to be dealt with. 2. Another complaint involved a barrister who cross-examined a respondent in a family law matter. The respondent, who was not the barrister’s client, made a complaint to the LSRA. The counsel had to prepare and furnish a response. Again, while the matter was thrown out, the barrister had to address the matter and answer the complaint. 3. A third example involves a solicitor involved in a family law matter who was acting for X, the parent of a child. Y, the other parent of the child, had engaged and discharged two

different solicitors. Y asked the solicitor for X if the solicitor would correspond by email directly with Y as Y wished to represent themselves, which occurred. Y subsequently made a complaint alleging that the solicitor had deliberately instructed his client to breach a District Court Order. The complaint was rejected as being vexatious, but the matter took three months to go through the LSRA because of Covid. Section 51(2) makes it clear that anyone can make a complaint against a solicitor’s conduct. That includes someone who has no relationship with the solicitor and/or someone who is not involved in any legal case with the said solicitor. To its credit, it seems that the LSRA, which has replaced the Solicitors Disciplinary Tribunal, is aware of the potential of vexatious complaints and will deal with such complaints accordingly. While that approach is to be welcomed, the fact remains that colleagues are caused considerable stress and are required to devote considerable time and effort to addressing and defending themselves against such vexatious complaints. Beware! Barra O’Cochlain O’Cochlain & Co.


Spring 2021 dsba.ie

In Practice

NEW HIGH COURT DIRECTION ON WARD OF COURT APPLICATIONS On the 4th of December 2020, the President of the High Court issued a new Practice Direction HC102 which came into force on the 11th of January 2021. Practitioners should note that a new form must be completed when submitting applications for Wardship or in any proceedings in the Wardship list. The Practice Direction gives guidance on the format of papers to be submitted to the Court. In addition, the Practice Direction provides that the relevant Form WOC1 and papers must be submitted to the Wards of Court, two clear days in advance of the relevant application.

The Practice Direction provides a link to a word version of Form WOC1. This Form provides information to the Wardship Judge as to the nature of the application, previous orders made and information on the composition of the committee and family members. If you have any queries regarding the form or any queries on updates in practice please do not hesitate to contact the DSBA Mental Health and Capacity Committee. Áine Hynes SC Chair DSBA MHCC, ainehynes@stjohnsolicitors.ie

WRITTEN SUBMISSIONS ACCESSIBLE TO THE PUBLIC High Court practice direction HC101, introduced by President of the High Court Ms Justice Mary Irvine last November, came into effect in February 2021. The new rules allow “in the interest of transparency and consistent with the principle of open justice” for any member of the public to seek access to written submissions which are submitted by a party to civil proceedings, where an Order has been made by the relevant Court that said submissions be made available to the public. The Order should contain the requirement that the written submissions be filed by the party to the proceedings with the Central Office within a timeframe prescribed within the Order. The Practice Direction will not apply to proceedings heard in camera or where there are statutory reporting restrictions in place. To ensure compliance with data protection

laws, and other rules of law, the party to the proceedings must identify such relevant material and prepare a redacted version of the written submissions for public release – such proceedings must be titled “Written Submissions for Public Release” and should be available at the time of delivery of judgment (if judgment is being delivered remotely, the redacted submissions should be sent electronically to the relevant Registrar in advance of the date fixed for delivery of the judgment). Additionally, the submitting party must ensure the submissions do not contain scandalous, abusive or vexatious material. No waiver of copyright by the author applies in the provision of the Written Submissions for Public Release. The Written Submissions for Public Release must contain the date, identity of the party on behalf of whom the submissions were

prepared, and the identity of both solicitor and counsel for the party. The rules only apply to written submissions prepared and submitted by one or more practising barristers and/or solicitors, and seemingly, therefore, will not apply to written submissions by lay litigants. A member of the public can seek a copy of the Written Submissions for Public Release by sending a request to the Principal Registrar of the Central Office identifying the name of the proceedings, the record number and if available, the date of the judgment and the name of the Trial Judge. The Principal Registrar may then provide an electronic copy of the written submissions on payment of any fee chargeable for the copy (the fee amount is not specified in the Practice Direction). Katie Linden LK Shields Solicitors

DIRECTIONS TO ACCESS REMOTE HEARINGS 1. Email the local court office and request the login details. 2. Once you have received the email attaching the login details open document. 3. Scroll down to the bottom of first page. 4. In a box you will see login details which will resemble : Browser Link: https://my.videoconferencing.ie/ meet/0949343206 5. Click on this link – this will take you to another link and the Court you are attending and date will appear on the screen. You will also see an invitation to join through browser.

6. Click on ‘Join through browser’ – this will take you to another menu. 7. Enter your name in the empty white box. DO NOT tick the box that says join using audio+presentation mode only. 8. Click on ‘Join now’ box. 9. You should now be in Pexip meeting (COURT) for the remote hearing at this point and should be able to see the Court Registrar. If you are very early joining you will be the only participant but don’t worry the court registrar will join just before court starts. Tracy Ennis Faherty BL the Parchment 61


In Practice

REVIEW OF THE ADMINISTRATION OF CIVIL JUSTICE REPORT 1. Overview The Review Group (“the Review Group” or “Group”) chaired by Mr Justice Peter Kelly, former President of the High Court has presented its report (“the Report”) to the Minister for Justice. The Review Group was established to examine the current administration of civil justice with a view to improving access to justice and reducing the cost of litigation. The Group comprises members of the judiciary and key stakeholders in the legal system. It met on 15 occasions, received submissions from 97 public sector and private sector bodies and engaged in extensive research into how civil justice is administered in other jurisdictions. 2. Recommendations The Report runs to almost 500 pages and sets out over 90 specific recommendations, including the following:• the use of a single originating document “a Claim Notice” to replace the various types of originating document currently in use across the various court jurisdictions; • the appointment of a number of court officers as Deputy Masters to preside at case management conferences; • the establishment of specialist and dedicated lists for clinical negligence actions, intellectual property disputes and disputes concerning technology; • the current index used for periodic payment orders be replaced with a new index which would take appropriate account of the need to address healthcare sector inflation; • the abolition of the current remedies of

• •

discovery, inspection and production of documents and their replacement with a new remedy regulating the entitlement of parties to civil litigation of documents in advance of trial to be designated “production of documents”; the thresholds for judicial review be increased by way of primary legislation; the introduction of a process for undertaking multi-party actions in the High Court and Circuit Court in line with the group litigation order procedure in England and Wales; allowing third party funding of litigation for liquidators, receivers and administrators in certain circumstances. The Review Group did not favour the permitting of contingency fees or relaxing the current prohibition on the linkage of the amount of client costs to the amount recovered since it was concerned that doing so would encourage speculative litigation and contribute to a claims culture; the commencement of work on a blueprint for what e-litigation for civil proceedings should look like and identify what such a model should deliver over time; that more court rooms across all jurisdictions be fitted with Wi-Fi and evidence-displaying hardware to promote the use of e-litigation with a relatively limited capital expenditure; the use of video conferencing for taking of expert and other evidence.

3. Legal costs Although it tried, the Review Group could not achieve a consensus as to how litigation

costs might be reduced. That task will form the basis of a separate review and report. The majority of the Group recommended the drawing up of legal cost guidelines by reference to individual items that could be outlined in a table with minimal legislative intervention. They proposed that the guidelines be non-binding but be intended to improve the certainty and transparency of the adjucated process. A minority of the Review Group recommended that a table of maximum cost levels be prescribed for in new legislation. Reduction of legal costs is also a theme that has been taken up by the Minister for Justice, Helen McEntee in her recently published Justice Plan 2021. 4. Conclusion The Report is an impressively comprehensive body of work and no aspect of our civil litigation procedure has escaped scrutiny. The real question is whether the resources will be made available for the very real and urgent reforms that are necessary to allow for the stated desire of improving access to justice, reducing the cost of litigation and the removing of obsolete, unnecessary and overly complex rules of procedure. If properly resourced and co-ordinated, there is no doubt but that this Report represents a blueprint for how our civil litigation model can look in the coming years and decades. Watch this space. DSBA Litigation Committee

Commercial Law Seminar

– 15th April 2021 The DSBA Commercial Law Committee is hosting a Webinar on 15 April 2021, from 12.30 – 14.30pm. The speakers will discuss a range of topics, including the impact of Brexit on both litigation and

62 the Parchment

commercial contracts; an update on important recent Commercial Judgments, including the FBD case; and developments in the area of corporate insolvency. Our brochure with full line-up of speakers and

topics will be circulated in the coming weeks. To register, please contact the DSBA office at maura@dsba.ie


Spring 2021 dsba.ie

News

Negative Interest Rates Update AIB, Bank of Ireland, Barclay’s Bank and Ulster Bank have notified legal firms of their intention to introduce a negative interest charge on all monies, including home mortgage loans, held in solicitor client accounts. Dublin Solicitors Bar Association along with the Law Society of Ireland and other bar associations are campaigning for solicitor client accounts to be exempt from these proposed new charges. Chief among our concerns is that solicitor accounts are transactional in nature and not akin to savings accounts. To impose a negative interest charge on solicitor accounts will be hugely disruptive for transactional activity conducted through law firms and pose an unfair financial burden on our clients. We agree with the Law Society that such charges are unjust and contrary to public policy and consumer protection. While this fight continues, unfortunately at this time these calls are not being heeded by the Banks and we must prepare for the changes that now appear imminent. The extent of these charges as currently known is outlined in the table below; Bank Effective Account Date Balance Allied Irish 5 February €3 million Banks plc 2021 Bank of 1 March €2.5 million Ireland 2021 Barclays 2 January €2.5 million Ireland 2021 Ulster Bank July 2020 €1 million (discretionary)

Negative Interest Rate -0.5% -0.65% -0.65% -0.9%

The financial implications (amongst many others) are significant. For context, a negative interest rate of 0.5% on a client deposit account of €3m would equate to interest payable of €15k per annum. In accordance with Central Bank guidelines, all customers must be given at least 60 days’ notice of any change in bank charges. While this provides some additional time to get ready for the impact of these charges, such preparations should now be an immediate priority for all firms. Of practical significance, when a client is paying their borrowed money out to complete a property purchase they will have

less money than when they received the loan as a result of the imposition of this charge. A similar situation will exist for those who are selling and paying off a mortgage. Clients will need to have additional money to make up this difference. Put simply, consumers in conveyancing and other transactions will have to pay more money to meet the contract price. The administrative burden on solicitors in calculating the impact for particular clients is also very significant. While the rationale of the ECB in applying negative interest charges to Banks was to promote lending, commerce and transactions and to stimulate the economy, the imposition of this charge on client accounts held with solicitors for the purpose of doing transactions has the opposite effect. The law governing interest on solicitors’ client accounts is set out in Regulation 8 of the Solicitors Accounts Regulations 2014. This Regulation provides for interest which accrues to deposits and is silent as to negative interest that may be applied to deposits. The Regulation does not expressly provide that the cost of keeping money on deposit can be passed on to clients. However, on the basis that negative interest amounts to a charge, it is the view of the Law Society that no changes to the Regulations are required. So what can solicitors do to prepare for these new charges? There are a number of steps that firms can take within the existing regulations to minimise their exposure to charges. Firstly, letters of engagement/ terms of service /section 150 letters should be updated so they make it clear that these charges may be passed on to the client. Make sure you have a clear policy on how your firm handles client interest. Secondly, you may consider moving client monies to another practice account depending upon what each bank decides to do and depending on your client’s instructions when notified about the imposition of such charges. There are a number of banks providing services in the State who have not yet decided to introduce these charges and it may be worth exploring opening new accounts with these institutions.

Thirdly, you should check the level of current client account balances and consider whether such funds should be offered to be returned to clients for their safekeeping to avoid the incurrence of this charge. Finally, you should monitor carefully further any correspondence from your Bank which will give you advance warning of any change in interest rates. The longer effect of these charges may lead to solicitors being reluctant to hold onto client monies. Perhaps, these new charges will lead to a wider discussion as to whether solicitors should hold client monies as extensively as we do or at all and whether models that pertain in the United Kingdom and other European countries such as Third Party Managed Accounts (TPMAs) should be introduced for firms in this jurisdiction. DSBA is at the forefront of the wider campaign to request AIB and Bank of Ireland in particular to exempt solicitor client accounts from these new charges in order to reduce unnecessary financial pressures on clients and reduce unnecessary administrative burdens on solicitors’ firms. You will have received our President’s Message when this issue first arose on 1 December. As your representative body, at a very early stage we raised this matter with the Law Society of Ireland and with various political and media figures. We will continue to press this issue and to keep you informed of developments. Joe O’Malley Diego Gallagher the Parchment 63


Tim Scanlon (1965-2020) The wider legal community was deeply saddened by the passing of Tim Scanlon, Chairman and Partner at Matheson, following a brief illness. Tim joined Matheson in 2000 as a partner in the firm’s Corporate Department, where he continued to build on his established reputation as one of Ireland’s pre-eminent M&A lawyers. In addition to leading the Corporate Department for a number of years, Tim was also instrumental in the establishment of the firm’s Financial Institutions Group, wholeheartedly delivering on the opportunity to lead, grow and develop a team which has advised many of the largest domestic and global financial institutions on some of the most newsworthy and innovative corporate transactions on the market. Tim was appointed Chairman of Matheson in 2018, a role in which his wisdom, empathy, calm demeanour and strategic outlook were always evident. Alongside being an outstanding lawyer, Tim was a great teacher and mentor to his colleagues in the firm, many of whom have gone on to be partners and leaders at Matheson today, and leading in-house counsel in Ireland and abroad. Tim had a

passionate interest in the arts. He was on the board of the Irish Museum of Modern Art (IMMA) and a member of the Development Council of the TCD Lir Academy of Dramatic Arts. He also volunteered on numerous occasions for Junior Achievement

Ireland, which he really enjoyed. Tim’s good-humour, positivity and collegiality will be deeply missed by colleagues and clients alike. We have lost not just a great lawyer and a great colleague, we have lost a great friend.

Erin Research Webinars A series of probate-related webinars set up in the wake of lockdown travel restrictions in 2020 are set to continue throughout 2021. Irish probate genealogy firm Erin Research organised the first online sessions in July of last year to test if there was an interest in educational seminars and CPD training for solicitors in the area of wills and probate. Padraic Grennan, Managing Director of Erin Research and host of the webinar series, says the take-up was good right from the beginning and as word-of-mouth has spread, the sessions now see hundreds of solicitors log on for each training seminar. “We sent out information on the sessions to our own contact lists and saw hundreds of solicitors register ahead of the first webinar. Since then, the number of registrants has completely taken off and on some days ahead of the webinars we were inundated with calls to our office about how to register. 64 the Parchment

I think what it shows is the appetite for specific, expert-driven learning, delivered in a convenient and accessible way. We’re also finding a great camaraderie online with solicitors offering advice or sharing contacts during the live chat.”

Probate Online A major development in the way estates are administered in Ireland occurred recently with the abolition of the Inland Revenue Affidavit (CA24), which was replaced by the new online Statement of Affairs (Probate) Form (SA.2). Grennan and his team were acutely aware that this transition could pose potential problems for probate practitioners, so decided to run a webinar prior to the change in relation to this topic specifically. “We were very kindly joined by Roisin McDevitt and Mark Bradshaw of the Revenue Commissioners, and John Glennon

and Anne Heenan of the Probate Office, who gave a demo of what the new online format was like. This gave our attendees an opportunity to see what was involved and to ask questions directly of the Revenue.” Grennan is working on a number of other projects currently that he feels will be of benefit to solicitors across Ireland. “When I set up Erin Research, my aim was to provide real value to the Irish legal profession. Given the success and continued growth of our webinar series, we have come to realise that there are other opportunities alongside our core business of tracing missing beneficiaries where we can provide real, tangible value to Irish solicitors. The onset of the pandemic has opened up some interesting business opportunities and we look forward to continuing to service the legal profession as best we can”.


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