Parchment Spring 2022

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D UB LIN SOLICITORS B AR ASSOCIATION MAGAZ INE | SPRIN G 2022 | ISSU E 91

RIGHT TO REQUEST REMOTE WORKING All bark but no bite?

NEW DEFAMATION LAW COULD CAUSE SERIOUS HARM CURRENT TRENDS IN FAMILY LAW


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Spring 2022 dsba.ie

From the Editor

W

elcome to the Spring edition of the Parchment which comes at a time of great sadness and tragedy in Ukraine. It is truly devastating and deeply worrying. Ukrainian solicitors too, have been caught up in the war, when just a few weeks ago they were attending Court, meeting their clients and working in a free and democratic society. It reminds us how brittle freedom can be and our thoughts and prayers are with all those killed, injured, displaced and whose lives are in ruins. Colleagues should be aware of the recently published Report of the Review of the Defamation Act 2009 by the Government. One of its key recommendations is the abolition of juries in High Court defamation cases. Please read Stuart Gilhooly’s analysis of the planned legislative changes which you will find on Page 64 in his ‘Closing Argument’. Killian Morris interviews current DSBA President Diego Gallagher in this edition and as the Commander of the largest Solicitors Bar Association in Ireland, he

gives his views on a range of issues and also sets out his priorities for the second-half of his Presidency. There are a host of other articles in this edition which are relevant to legal practice today and I hope you enjoy reading them. The Parchment always welcomes new contributors and so if you would like to write an article or short snippet for the next or future editions of the Parchment, please let me know. Have a great upcoming Easter Break.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2021/2022

DIEGO GALLAGHER DSBA President

SUSAN MARTIN DSBA Vice President

JOAN DORAN Chair of Practice Management

KILLIAN O’REILLY Chair of Litigation Committee

AVRIL MANGAN

JESSICA HICKEY Chair of Probate & Tax

MATTHEW KENNY Treasurer

PAUL RYAN Honorary Secretary

NIALL CAWLEY Programmes Director

RONAN McLOUGHLIN Chair of Property Law Committee

CIARA O’KENNEDY Chair of Employment Law Committee

GERARD O’CONNELL Chair of the Parchment Committee

CIARA HALLINAN Chair of Criminal Law

EIMEAR O’DOHERTY Chair of Inhouse

The DSBA has moved…. After several years on Dawson Street, the Office of the DSBA has moved to the Capel Building, Dublin 7. Please note our new address and DX below:

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

PUBLISHED BY The Dublin Solicitors Bar Association, Unit 206, The Capel Building, Mary’s Abbey, Dublin 7 DSBA OFFICE, T: 01 670 6089 F: 01 670 6090 E: maura@dsba.ie DX 200206 Capel Building W: www.dsba.ie ADVERTISING ENQUIRIES Sharon Hughes T: 086 871 9600

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

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Spring 2022

Contents 8

Right to Request Remote Working – All Bark but no Bite?

Gender Pay Gap Reporting Obligations Ailbhe Dennehy and Ciara Taggart have an update on Ireland’s mandatory gender pay gap reporting obligations

16

First in-person DSBA Seminar in Two Years The DSBA Practice Management Committee hosted a seminar on the 22nd of March 2022

20

Current Trends in Family Law Cases post Covid Keith Walsh takes stock of how the practice of family law stands in Ireland at present

24

Online Anonymity

28

DSBA President Interviewed

Michael O’Doherty BL puts this troubling issue into sharp focus

Killian Morris sits down with DSBA President Diego Gallagher

34

Revenue’s New Estate Clearance Procedure Finola O’Hanlon outlines the new Revenue procedure

38

What is the Fairest Approach for Plaintiffs? Avril Scally and Nicholas Moore consider Periodic Payment Orders and Lump Sum Awards Dublin Solicitors Bar Association Unit 206,The Capel Building, Mary’s Abbey, Dublin 7, Ireland T: 01 670 6089 E: info@dsba.ie W: www.dsba.ie

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A PUBLIC SERVICE PRESIDENT... DIEGO GALLAGHER

Bríd Nic Suibhne assesses the Right to Request Remote Working Bill 2022

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Good lawyers are needed to assess what the legislation allows for and, if necessary, to identify where new legislation might be needed

28


Spring 2022 dsba.ie

Contents

REGULAR FEATURES 01 04 62 64

Editor’s Note President’s Message In Practice Closing Argument

08 40

Proposed Personal Injury Changes Deidre Munnelly and Teresa Love set out the proposed new changes in the Personal Injuries Resolution Board Bill 2022

42

Statute of Limitations: The Implications of Smith v Cunningham Shane Neville and Laura Finn review a recent decision of the Court of Appeal

44

No-Fault Dismissals

48

Complex Management Company Agreements and Litigation

Alan Devaney looks at this Employment Law issue

Eileen Roberts shines a light on complex management company agreements and a recent High Court decision on the issue

54

40

Supreme Court Decisions on Tax Appeals Elizabeth Quinn reviews two recent decisions from the Supreme Court

56

Highlights of the Data Protection Commission’s 2021 Annual Report Paul Lavery, Laura Lambe and Ruth Hughes analyse the DPC’s recently published 2021 report

60

Test for Dishonesty Clarified Stephen McLoughlin and James Meighan assess a recent Court of Appeal ruling

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Message from the President

DSBA Stands in Support

O

n the 24th of February 2022, the Russian government commenced an illegal war on the people of Ukraine. No words can properly describe the pain, shock and suffering being felt by the people of Ukraine. The Dublin Solicitors Bar Association endorses the message issued by the Council of Bars and Law Societies of Europe on the 1st of March 2022. The DSBA and its members have been at the forefront of advancing and defending the legal principles upon which democracy and the rule of law are based in Ireland. The DSBA joins EU institutions and the international community in their demand that the Russian government immediately ceases its illegal invasion of Ukraine. All states must respect the fundamental obligations, values, principles and freedoms set out in the Charter of the United Nations, the European Convention on Human Rights, Budapest Memoranda on Security Assurances, and other general principles of public international law, including the Rome Statute of the International Criminal Court. Respect for international laws and treaties must be maintained and upheld. In the current tragic context in which the Ukrainian people find themselves, the need to uphold the rule of law is of paramount importance. I wish to highlight the particular importance of the need to respect universal values of human dignity, freedom, equality and solidarity. Europe must remain an area of peace, freedom, security and justice. In particular, I express solidarity with our Ukrainian colleagues. I am also mindful of the position of those Russian colleagues who may not be able to speak out against this illegal war for fear of their lives. The DSBA formed a Public Interest and Human Rights law committee last year and this is timely in light of recent events. The DSBA is exploring ways to assist our Ukrainian colleagues via fundraising and otherwise, including a table quiz, and I would very much welcome any suggestions or support from our members. Since the last edition of the Parchment, there have been significant changes leading to the re-opening of society. The last two years have led to huge shifts in society and not least in the legal profession. The introduction of online Court hearings and remote working are two major changes. Many developments

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have been positive, for example, the increased use of video platforms has greatly enhanced capacity to meet clients and deliver comprehensive advices at short notice. Other developments have been less positive, such as the reduction in opportunities to meet colleagues. Many people are understandably keen to look to get “back to normal.” However, I hope that we can look “forward to better.” Pre pandemic, significant challenges existed in the legal world. These included challenges relating to professional indemnity insurance, a Court system that lacked resources both in terms of facilities and personnel, delays in access to justice and the scourge of bullying and harassment as highlighted in the Dignity Matters report. None of these issues are new and indeed it is likely that many difficulties have been exacerbated during the pandemic. However, a lot of great work is being done both by solicitors and other key stakeholders such as the Courts Service and the judiciary. For example, significant progress has been made in terms of freeing up capacity in the Circuit Court. Our Litigation Committee, and in particular our colleagues Killian O’Reilly and James McMahon, are actively working with the Courts Service and the judiciary to support this. Our Property Committee has also prepared submissions to the Consultation on the Creation of New Profession of Conveyancer which has been lodged with the LSRA (Legal Services Regulatory Authority). The DSBA continues to advocate for solicitors on all major

issues of relevance to the profession. Other committees are working hard on developing legal knowledge for our members with new precedents and industry leading seminars. In particular, I will highlight the great work being done by the Mental Health and Capacity Committee, and in particular our colleagues Joan Doran and Aine Hynes, who recently held a seminar on the upcoming Capacity Act attended by over 70 members and chaired by our former President, Judge John O’Connor. I mentioned above that one of the downsides of the last two years was the reduction in opportunities to meet colleagues. Collegiality and interaction is at the heart of wellbeing and legal learning and development. It is particularly important for younger members and members from minority backgrounds. I will conclude by hoping that between the time of writing and you reading this edition that the illegal war will have ended. The outbreak of hostilities in Europe underlines how fragile democracy and the rule of law can be. Remember that our democracy depends on dedicated, hardworking and honest solicitors like yourselves. Ireland is lucky to have the calibre of solicitors that it has who, day in day out, protect the rights of every class of people in Ireland. We will continue to work together to defend those hard won rights and also to support each other as colleagues and essential workers in the upholding of the rule of law. Diego Gallagher, DSBA President


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MEMBERSHIP

DSBA – Our Benefits T he Dublin Solicitors Bar Association (“DSBA”) is the largest bar association in Ireland, having been established in 1935. It is a representational and not a regulatory organisation, existing to promote the welfare and interests of its members who are solicitors. The DSBA aims to promote a vibrant and up-to-date

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profession and collegiality amongst solicitors. The DSBA offers the following benefits to members:

conferences and seminars in the next 12 months to meet the ongoing educational and information needs of its members.

DSBA CPD Events – Preferential rates for members for top quality CPD [Continuing Professional Development] events held all year round. The DSBA is committed to providing a series of

DSBA Precedents – Precedent publications area available on topics including solicitors’ partnerships, residential tenancies, share purchase and sale agreements and family law and separation agreements. All these are in constant and daily use by practitioners.

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Membership

DSBA Parchment Magazine – Our award winning quarterly magazine which will keep you up to date with the profession and practice. DSBA Sports Events – Golf, tag rugby, soccer, cricket, tennis – events to promote collegiality and friendship amongst solicitors. DSBA Social Events – Events for solicitors throughout the year and our not to be missed annual conference. DSBA Submissions - Our committees and council work hard to represent solicitors and their interests – current DSBA taskforce on the Legal Services Regulation Act. The Consult a Colleague Helpline is available to confidentially assist every member of the profession nationwide with any problem whether personal or professional free of charge. The volunteers on the panel who provide the service are all solicitors of considerable experience, www.consultacolleague.ie.

DSBA Younger Members’ Committee represents the interests, both professionally and socially, of the younger and most recently qualified members of our profession, from newly qualified up to five years PQE. The Younger Members’ Committee of the DSBA organises low cost CPD events, lectures and other events for young solicitors.

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regularly updated website for information on all of the above. For renewal and new membership please complete the form below in full and return it together with a cheque/bank draft/postal order for the appropriate fee to Maura Smith, DSBA, Unit 206, The Capel Building, Mary’s Abbey, Dublin 7. DX 200206 Capel Building or call 01 6706089 to pay by credit/ debit card.

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Right to request remote working

- ALL BARK BUT NO BITE? Following on from the lifting of many public health restrictions at the end of February 2022 and reports of employees being overwhelmingly in favour of continuing to work from home, Bríd Nic Suibhne assesses the Right to Request Remote Working Bill 2022

T

General Scheme – the Main Points

he aim of this proposed legislation is, to use the words of the Minister for Enterprise, Trade & Employment, Leo Varadkar, “to get to a position whereby remote working/home working becomes a choice and that employers facilitate that [choice] provided the business gets done”. • Employees have not been given a general right to work remotely. • Employees will have a right, via a prescribed process, to request a remote working arrangement, either full time or part time (Remote Working Request). • The Remote Working Request must include the proposed number and times of remote working days and a self-assessment of the suitability of the proposed remote work location for the employee’s role. The General Scheme refers to data protection, confidentiality, internet connectivity, ergonomic suitability and equipment requirements as issues

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which may be considered by the employee in his/her self-assessment. A Remote Working Request is available to all employees who have six months' service with their employer. An employer must respond to a Remote Working Request within a 12 week period. An employer can refuse a Remote Working Request in whole or in part. Where a Remote Working Request is refused, the employer must provide the employee with a written statement of the grounds or reasons for refusing a request (Refusal Grounds). An internal appeal process is recommended as best practice for all Remote Working Requests that are refused. The General Scheme does not expressly direct employers to put an appeals process in place but rather assumes that this will be done and there are no consequences for employers who do not put an appeal mechanism in place. The General Scheme does not address the health


Spring 2022 dsba.ie Bríd Nic Suibhne is an associate in the Employment, Pensions and Incentives team at A&L Goodbody

• • •

and safety aspects of remote working, but does state that the 12 week response period to a Remote Working Request allows for the engagement of a health and safety consultant (presumably by the employer). Where an employer has responded properly, but has refused a Remote Working Request, the employee will have to wait 12 months before submitting another request, unless he/she moves to a new role. An employee is protected from penalisation by his/her employer which arises as a result of the employee’s Remote Working Request. Employers must have a Remote Working Policy in place to inform employees of the process to follow when making a Remote Working Request. A Code of Practice will be published which is intended to supplement the legislation.

Reasons why a Remote Working Request may be Refused There will, in many instances, be good business

Employment

reasons as to why an employer refuses a Remote Working Request. A number of reasons are included in the General Scheme as business grounds: 1. The nature of the work not allowing for the work to be done remotely. 2. Cannot organise work among existing staff. 3. Potential impact on quality. 4. Potential negative impact on performance. 5. Planned structural changes. 6. Burden of additional costs, taking into account the financial and other costs entailed and the financial resources of the employer’s business. 7. Concerns regarding the protection of business confidentiality or intellectual property rights. 8. Concerns regarding the suitability of the proposed workspaces on health and safety grounds. 9. Concerns regarding the suitability of the proposed workspaces on data protection grounds. 10. Concerns regarding the internet connectivity of proposed remote working location. 11. Inordinate distance between the proposed location

There will, in many instances, be good business reasons as to why an employer refuses a Remote Working Request

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and on-site location. 12. If the proposed remote working arrangement conflicts with the applicable collective agreement. 13. Ongoing or recently concluded formal disciplinary processes.

The biggest challenge for employers in refusing Remote Working Requests will be the inherent difficulty in relying on such reasons in circumstances where employees have, in many instances, been very successfully working from home for almost two years now with little or no adverse impact on output or performance

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The biggest challenge for employers in refusing Remote Working Requests will be the inherent difficulty in relying on such reasons in circumstances where employees have, in many instances, been very successfully working from home for almost two years now with little or no adverse impact on output or performance. Other factors (not referenced in the General Scheme) such as staff connectivity and morale, the promotion of collaboration, knowledge sharing and so on, are all legitimate, rational and valid reasons as to why an employer may wish to limit the number of employees working remotely or the duration they do so. However, it seems clear from the General Scheme that where remote working is not adversely affecting business performance or a company’s bottom line, it is going to be harder to justify the refusal of Remote Working Requests. Survey after survey has reported that the vast majority of employees wish to continue some form of working from home arrangement, with the recruitment website Indeed reporting that out of 1500 employees recently surveyed, 56% stated that they would only apply for flexible roles or roles that would allow them to work remotely. Employees are therefore likely to vote with their feet to the extent that remote working will become a recruitment/retention tool, or barrier, as the case may be.

Can an Employee Appeal a Refusal of a Remote Working Request? An internal appeal mechanism is recommended and should be included in an employer’s Remote

Working Policy. Of particular note (and surprise to many commentators) is that the General Scheme does not provide for a right to challenge an employer’s decision to refuse a Remote Working Request before the Workplace Relations Commission (WRC). This is confirmed in the explanatory notes accompanying the General Scheme which state that “the right to make a complaint to the WRC… is not intended to extend to a right to complain in respect of the substance or merits of an Employer’s decision to decline a request.” In the context of some stakeholders calling for an absolute right to work remotely (at the election of the employee), this aspect of the General Scheme is likely to be criticised. It will be interesting to see if the position evolves as the draft Bill makes its way through the legislative process, particularly as the current position is somewhat at odds with the statement made by the Minister when introducing the General Scheme that “employers will have to give a solid reason that stands up”. The fact the Minister also added that while that requirement may not be clear from the General Scheme it “certainly will be clear in the final legislation when it’s published” suggests that employers will not be immune from scrutiny by the WRC when it comes to their decision making on refusing Remote Working Requests. The Code of Practice will provide more detail on what is expected of employers in considering and accommodating Remote Working Requests. An employer’s failure however to follow a Code of Practice does not constitute a breach of a legal obligation in itself (i.e. an employee cannot take a claim against his/ her employer for not adhering to a Code of Practice) but would be considered by the WRC in its consideration of other claims. For example, an employer’s refusal to facilitate an employee’s Remote Working Request could be a key feature of a constructive dismissal claim, a trade dispute under the Industrial Relations legislation, or a disability claim under the Employment Equality Acts.


Spring 2022 dsba.ie

Employment

What Complaints can Employees Bring to the WRC? In its current form, the General Scheme sets out a mechanism for employees to complain to the WRC in limited scenarios where an employer (a) has not made a decision as outlined above in response to a Remote Working Request; (b) has not provided the Refusal Grounds and/ or (c) has incorrectly deemed a request for remote working to be withdrawn by the employee in certain circumstances. If the WRC finds in favour of an employee, it can direct the employer to remedy the fault. For example, an employer could be directed to respond to a Remote Working Request in circumstances where it has not done so. The WRC can also award compensation to an employee, capped at four weeks remuneration.

Action points for employers The Right to Request Remote Working Bill 2022 is expected to be enacted by the Summer, at which point employees can start submitting requests pursuant to a statutory right. However, as many employers begin the process of getting their workforce back into the workplace over the coming weeks and months, it can be expected that employers will receive Remote Working Requests well before the right to do so is on the statute books. Given the various false dawns employers have experienced in preparing for a return to the office over the past while and the realities of managing employees remotely, it is likely that most employers

will have already put serious thought into the future of their workplace, with discussion and consultation and consideration of remote working arrangements already happening. While clarity is awaited on where the government lands on the right to request a remote working arrangement and how onerous or otherwise the obligation to accommodate this request will be on employers, there are certain actions that an employer can and should be taking now in advance of this new statutory right becoming law: • Review and assess what impact (positive and negative) remote working has had on the business over the last two years. • Actively consider and identify areas of the business or role types that may or may not be amenable to remote working on a longer term basis. • If certain roles or functions are not amenable to remote working, pinpoint why not (by reference to the reasons in the General Scheme or otherwise). • If certain roles or functions are amenable to remote working, consider the extent to which employees occupying those roles may work remotely, and the consequences and parameters of that. • Consider engaging with employees to understand the appetite for remote working (and the preferred options around how that might be structured). Start preparing a policy which outlines how Remote Working Requests are to be made and how decisions on those Requests will be decided upon, to be finalised and rolled out to employees once the statutory requirements are clarified. P the Parchment 11


Gender Pay Gap Reporting Obligations Ailbhe Dennehy and Ciara Taggart analyse the eagerly awaited update on Ireland’s mandatory gender pay gap reporting obligations which was published by the Minister for Children, Equality, Disability and Youth on International Women’s Day and warn of a tight six-month window for larger-sized employers (250+) to get their house in order

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mployers will be required to designate a specified “snapshot” date of their employees in June 2022 and then report the requisite pay and bonus information by December 2022. While the regulations to provide further detail on the form and manner of such reporting are outstanding, the Minister has committed to these regulations being published “in the coming weeks” and, in any event, before June 2022. In this article, we set out below an overview of the current legal position and what steps employers should be taking now to prepare.

A GPG is the difference in the average gross hourly pay of women compared with men across a particular organisation. It is not seeking to identify unequal pay but rather to identify where women are represented across an organisation and the extent to which there is equal representation from both males and females at each level within an organisation. By dividing a business into quartiles (i.e. lower paid, lower-middle, upper-middle and upper paid) for calculation and reporting purposes, it is possible to identify where women are most represented across an organisation – whether in higher or lower earning roles.

What is the Gender Pay Gap?

What is the Current Legal Position?

It is important from the outset to distinguish between the terms “gender pay gap” and “unequal pay”. These two concepts are often used interchangeably and such confusion can give rise to the impression that the existence of a GPG means that women in an organisation are not receiving like pay for like work – i.e. that there is some form of gender discrimination afoot. The existence of a GPG within a business is not necessarily a red flag for discrimination. In fact, it is expected that an organisation (for a variety of internal and external factors) will have some degree of a GPG.

The enactment of the Gender Pay Gap Information Act 2021 (the “Act”) in July 2021 provided a legislative basis for GPG reporting in Ireland for the first time. While the introduction of this legislation was welcomed following a number of false starts, the granular detail of precisely what information must be published and in what manner is pending. However, the government’s renewed commitment to requiring such reporting by the end of 2022, with a proposed “snapshot” date of June 2022, is a clear signal that the reporting obligations for in scope employers must be discharged this year.


Spring 2022 dsba.ie Ailbhe Dennehy is a partner at Matheson. Ciara Taggart is a solicitor at Matheson. Both work in the Employment, Pensions and Benefits Group at Matheson

Who is Affected? Employers with 250+ employees as of June 2022 will be required to publish their GPG data by December 2022. This threshold will reduce to a headcount of 150+ employees within the first two years of the regulations and drop further to encompass all employers with 50+ employees within the first three years of the regulations. As the regulations are to be published imminently, it is expected that all employers with at least 50 employees will be in scope to report the relevant GPG data by 2025. Notwithstanding the above eligibility requirement, in practice many employers who are outside its scope are also taking steps to prepare to report their data to ensure they are in a position to remain competitive and recruit and retain key talent.

What Information must be Reported? It is expected that the relevant regulations will put more shape and colour on the precise information that relevant employers will need to report this year. Employers will be required to report the difference in male and female remuneration expressly as: • Mean and median hourly remuneration for full time and part time employees; • Mean and median bonus;

Remuneration

• Percentage of all employees who have received a bonus or benefits in kind; and • Proportions of male and female employees in the lower, lower-middle, upper-middle and upper quartile pay bands. The Department of Children, Equality, Disability, Integration and Youth will publish guidance for employers on how the GPG calculations should be made. It is also noteworthy that plans are in place to develop an online reporting system for the 2023 reporting cycle, although it is unclear whether an online option will be available for the first round of reporting in December 2022. Employers will also be required to publish a statement alongside the figures. This will require the employer to provide, in its opinion, the reasons for the differences in the mean and median pay and, significantly, the measures it has or intends to put in place to reduce or eliminate this gap. This requirement provides a critical chance for employers to contextualise the existence of the GPG and, significantly, set out their roadmap for shrinking the gap. As the duty to report is not a once-off exercise, but rather it is anticipated to be an annual requirement, the data reported and measures committed to will effectively serve as a yardstick against which an employer’s progress will be assessed year in, year out. the Parchment 13


Remuneration

What Preparatory Steps Should be now Taken?

Employers are advised to take preparatory steps early to ensure an appropriate strategy around collating, computing, reporting and ultimately communicating, not just the output but also the steps to be taken to address any gap, is in place

Turning to look at our neighbours in the UK, Irish employers have an invaluable opportunity to learn from their experiences and certainly one key learning was that collating and reporting the requisite data was not as easy as it might seem at the first glance. Employers are advised to take preparatory steps early to ensure an appropriate strategy around collating, computing, reporting and ultimately communicating, not just the output but also the steps to be taken to address any gap, is in place. While we are awaiting the content of the regulations, there are a number of steps that can be taken now in anticipation of these requirements coming into effect, in particular given the short lead-in time for the first year of reporting (December 2022): 1. Trial run. Consider a trial or dry run – identifying the relevant quartiles across your headcount and gathering and analysing payroll data. 2. Technology. Look at how your business will actually crunch these numbers and produce the relevant statistical data to ensure accurate reporting. Do you have the right expertise in payroll or finance, do you have the right technology from a hardware or software perspective, is there a need to put in place appropriate training? 3. Policies/procedures. Start looking at your existing policies and procedures when it comes to compensation structures and recruitment/ promotion practices. Such a review might identify unintentional gender bias that may impact on the final figures.

4. Stakeholders. Think about the line-up of your stakeholders – who needs to be part of your holistic approach to identifying and addressing the GPG? Certainly you will need to work with key personnel in payroll and finance, but equally you will need to work with your HR teams and external PR support when it comes to managing the message, both internally and externally. 5. Legal advice. Involving your legal team early will also be vital – in particular when it comes to interpreting the content of the soon to be published regulations and understanding precisely what elements of “pay” need to be inputted in the calculations, addressing any discrimination claims that may arise and ensuring compliance to data protection principles. In addition to the above preparatory steps, there are a number of other practical measures that employers can consider in order to seek to address any gap identified. These measures may form part of the explanatory statement accompanying the figures reported: 1. Policies. The implementation of a comprehensive flexible/agile working policy working alongside a diversity and inclusion policy will be a core element in facilitating increased female representation in the labour market. 2. Investment in Staff. Prudent businesses will explore ways to invest in staff talent through upskilling and reskilling with a focus on gender diversity – in particular diversifying the leadership pool and implementing innovative methods around talent development and integration. 3. Training. The appointment of diversity managers and implementing culture reviews working hand in hand with unconscious bias training. 4. Recruitment/promotion approach. Employers can also consider rethinking how they assess candidates for recruitment and promotion by using a transparent skill-based assessment based on clear and consistently applied criteria and structured interviews and even reviewing job descriptions to eliminate language that may be more likely to put off potential female applicants.

Conclusion In reality, the real impact of this legislation is that it will force employers to highlight otherwise sensitive information that will impact directly on their brand reputation and profile as an employer, with a consequent impact on retention and recruitment. It essentially turns the labour market on the employer. This will be particularly effective in the highly competitive environment that employers are operating in now. One potential major defect in this approach, however, is that the disclosed gap may be misunderstood or, in some cases, driven by external factors beyond the employer’s control. The explanatory statement should go some way to putting their data in context but may not always provide sufficient clarity. Now that the government has given the outstanding regulations the “green light”, prudent employers are advised to take the above steps to prepare, in particular against the backdrop of the short lead-in time for the first year of reporting. P 14 the Parchment


Spring 2022 dsba.ie Gerard O’Connell works at the Chief State Solicitor’s Office. He is chair of the Parchment committee

Book Review

The Life and Times of a Country Solicitor There are few literary byways less travelled than that of the Irish legal memoir. Gerard O’Connell was impressed after reading Pat O’Connor’s above-entitled memoir

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ery few Irish legal memoirs have been published over the past century or so and most of those that have almost invariably originated from the ranks of the Bar. Rex Mackey’s “Windward of the Law” and Maurice Healy’s “The Old Munster Circuit” remain the undisputed classics of the genre with Healy’s book remarkably still being republished as recently as 2015 having been first published in 1939. The solicitors’ branch of the profession has been woefully underrepresented in printed memoirs. However, the recent publication of Patrick O’Connor’s “The Life and Times of a Country Solicitor” by Old House Press is a gallant attempt to redress this imbalance. “The Life and Times of a Country Solicitor” is the memoir of Pat O’Connor, managing partner of the firm P O’Connor and Son, Swinford, Coroner for the district of Mayo and President of the Law Society (1998/99). The author is a scion of one of the most prominent legal dynasties in the West of Ireland – the O’Connors of Swinford. The author’s grandfather – also Patrick – founded the family firm in 1900 which in turn comprised his father Thomas V. (“Val”) O’Connor (1916-1988) who served as President of the Law Society in 1972 and his aunt Moya O’Connor. An uncle John W. O’Connor was a barrister and a Circuit Court Judge. One of the enduring themes of this book is the author’s justified pride in the accomplishments of his family and his determination to uphold timeless values in his own professional career. An interesting insight is provided by the father to son advice Pat received on commencement of his own career. The advice his father gave him was based on a letter which was written by Lord Charles Russell (Lord Chief Justice of England and Wales 1894-1900) to his son which Pat’s father adopted as a template for professional practice. The letter begins with an exhortation to “1. Begin one’s day’s work with a memo of what is to be done in order of urgency. 2. Do one thing only at a time…..” and continues in that vein until nine rules are enunciated. One wouldn’t stray too far

off the righteous path if one adhered to the “Russell/ O’Connor rules”! Structured thematically as opposed to slavishly following a chronology, the book gives a real sense that the author is (to borrow Denis Healey’s phrase) “a person with a hinterland”. Sport, Travel, Politics, Social Activism and Coronial matters all feature side by side with a busy professional life replete with over 30 years of representative service to the profession through the author’s Law Society career. There are also many lighter moments for the reader to enjoy; a wistful look back at the romance of a promising schoolboy rugby career, an epic expedition through South America, and how the Swinford Fleadh Ceol made its mark on the Irish Statute Book. Included by way of appendix is an entertaining roll call of characters and community figures from Swinford’s past which could only have been written by someone who has had his hand on the pulse of the community he serves. There is much to commend about “The Life and Times of a Country Solicitor”. This is an engaging book, written in a lively manner but perhaps above all else this is a timely book. Timely in the sense that one scarcely hears of the positive contribution that the Irish solicitor makes to the social, cultural and civic life of this country. Pat O’Connor’s book and the values of integrity, duty, “one’s word being one’s bond” which radiate from it, is a story that needs to be told. The author has, perhaps, struck a blow in this book for the many unsung heroes in our profession, town and country who strive for nothing more than to do their clients and their community some service every day. P

Pat O’Connor’s book and the values of integrity, duty, “one’s word being one’s bond” which radiate from it, is a story that needs to be told

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30/03/2022 11:04


Photography: Owen O’Connor

First in-person DSBA Seminar in Two Years The DSBA Practice Management Committee hosted a seminar on the 22nd of March 2022 which dealt with a number of topics including: • Keeping Positive – The Law on Negative Interest Rates and Ways to Mitigate.

• Solicitor’s Office Grievance and Disciplinary Systems Advice. • New Law Society Standard Terms and Conditions of Engagement. • Remote Law Society Inspections – What to Expect.

• Mandatory Management and Professional Development Skills 2022. The speakers were Brendan Dillon, Dillon Solicitors; Jim Ryan, Law Society; Bernadette Treanor and Susan Martin, Martin Solicitors.

Speakers at the DSBA Seminar were Susan Martin, Bernadette Treanor, Jim Ryan, DSBA President Diego Gallagher and Brendan Dillon 16 the Parchment


Spring 2022 dsba.ie

DSBA News

Left: Geraldine Kelly, Daragh Quinn and Deirde Smith Far left: Gearóidín Charlton and Niall Cawley

Right: Joanne Sheehan, Triona Cody and Nola Prentice Far right: David Frawley and Conor Cleary

Left: Bernadette Treanor and Olivia Harrington Far left: Brian O’Brien and Brendan Dillon

Right: Niall Cawley and Brendan Byrne Far right: Jim Ryan and Susan Martin

the Parchment 17


Audrey Byrne is a partner and Bébhinn Bollard is a senior associate in the Disputes Group at McCann Fitzgerald. Eoin Galligan is a trainee solicitor at McCann Fitzgerald

Litigation

Costly Error in Ex Parte Order Audrey Byrne, Bébhinn Bollard and Eoin Galligan look at a recent decision in the High Court which serves as a reminder of the importance of always carefully checking the terms of a Court order, particularly one obtained ex parte

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n Generator Source Limited Liability Partnership (trading as Diesel Service And Supply) v IGSTSP Limited (t/a 360 Turbines), Tasiast Mauritanie Limited Société Anonyme and Kinross Gold Corporation, [2021] IEHC 795, the order granted leave to issue proceedings out of the jurisdiction on a foreign domiciled defendant but a failure to list the sub-rule being relied upon in the ex parte docket led to the incorrect sub-rule being referenced in the ex parte order granted. This error meant that the court order did not properly identify the basis on which the Irish Courts were asserting jurisdiction. The error remained undiscovered until the proceedings were served and the defendants then challenged jurisdiction under the sub-rule identified in the order. While such errors may seem minor and easily rectifiable, if left unidentified, they may cause serious implications for the validity of service and jurisdiction of proceedings.

Background An ex parte application for leave to serve notice of a summons was made by the plaintiff in October 2019 pursuant to Order 11, rule 1, which lists a number of circumstances in which service out of the jurisdiction may be allowed. The plaintiff was granted leave by the High Court by relying on sub-paragraph (h) of Order 11, rule 1, used where any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction. The plaintiff ’s ex parte docket referred to Order 11, rule 11 without any reference to a specific sub-rule. The subsequent ex parte order made by the Court referred to sub-paragraphs (e) and (f) of Order 11, Rule 1. The error in the ex parte order was not spotted by the plaintiff until after the defendants had been served with the proceedings and had issued a motion challenging the Irish Court’s jurisdiction under sub-paragraphs (e) and (f) of Order 11, Rule 1. 18 the Parchment

Background to the Judgment The judgment of Mr Justice Simons was delivered as a result of the defendants seeking their costs of the plaintiff ’s application under the slip rule to amend the ex parte order and their costs of bringing a jurisdictional challenge motion on foot of an incorrect court order having been served on them. The defendants sought their costs on the basis that the proceedings were improperly served out of the jurisdiction and the plaintiff ’s considerable delay in identifying and correcting the error on the face of the order.

Decision In delivering his judgment on 21 December 2021, Mr Justice Simons highlighted the seriousness of the issuance and service of proceedings outside the jurisdiction on a foreign domiciled defendant who must be entitled to rely on the papers as served. While the court expressed sympathy with the procedural error, it was held that the obligation to confirm that the terms of the order are accurate resided with the plaintiff and its legal representatives and that the defendants were entitled to recover their costs.

Conclusion It is a timely reminder of the well-known obligation upon a party who wishes to issue and serve intended proceedings outside of the jurisdiction (and outside the EU) to ensure the appropriate sub-rules of Order 11(1) RSC are stated correctly in the ex parte docket, referred to in the affidavit grounding the application and that the order as perfected contains a recital of the relevant sub-paragraphs under which it has been made, stated by the Court of Appeal (O’Flynn v Carbon Finance Ltd [2015] IECA 93) in the form of an exhortation to practitioners, is as important as ever and failure to do so could cost the erring party. P


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Current Trends in Family Law Cases Post Covid As we emerge from the worst of the Covid-19 pandemic, Keith Walsh takes stock of how the practice of family law in Ireland now stands and what trends are apparent

1. Divorces are on the Increase in the Circuit Court: In 2019 there were 4,050 applications for divorce while there were 5,220 in 2020. The reduction in the waiting time for divorce from 4 to 2 years has been a very significant factor in the increase in the number of couples opting for Divorce rather than Judicial Separation and this is likely to continue.

2. Judicial Separations are Decreasing Significantly in the Circuit Court: In 2019 there were 1,206 applications for judicial separation while these had almost halved to 617 in 2020. But they are not gone completely. It is very helpful to have an alternative to waiting for 2 years for a divorce. The new Family Law Act, 2019 made it easier for couples living in the same residence to prove that they were living apart for the purposes of both Judicial Separation and Divorce. Judicial Separation will not disappear as it is necessary where the spouses are not living apart for 2 years and in circumstances where they cannot qualify for a divorce. In many cases spouses can initiate Judicial Separation proceedings and then convert or change them into Divorce proceedings once they have the requisite two years apart. While this involves issuing 20 the Parchment

a new set of proceedings, if it is done at the end of a case it will not involve significant costs for the litigants.

3. More High Court work Numbers have jumped in the family High Court, total Judicial Separation and Divorce figures were up from 46 applications in 2019 to 65 in 2020. Divorce figures jumped by 100 % from 23 applications in 2019 to 46 in 2020 while judicial separation applications dropped but only slightly from 23 in 2019 to 19 in 2020. Divorce applications in the High Court in 2018 were similar to 2019 at 23 while applications for Judicial Separation were higher at 31 in 2018. This is the highest total number of Divorce and Judicial Separation applications in one year since 2009 when there were 68 applications, 35 for JS and 33 for Divorce. The numbers from 2002-2008 were all higher, starting with 2002 – 92,95,82,79,89,89,85. The change in the jurisdiction of the Circuit Court from rateable valuation of land in Separation and Divorce cases to the market value of property of €3 million does not appear to have had much effect and the figures seem to follow the boom and bust era of the Celtic Tiger.


Spring 2022 dsba.ie Keith Walsh is a solicitor specialising in family law in Dublin. He was appointed Senior Counsel in 2021 and is the author of Guide to Order 59 – Divorce and Judicial Separation Proceedings in Circuit Court, Bloomsbury Publishing, 2019

However you would have expected figures in the High Court to have increased as the economy recovered in 2016-2019 and this lack of an uplift in High Court cases could be attributed to the perceived increase in the jurisdiction as previously many cases where marital assets were valued at over €1 million may have been taken in the High Court before change in the Circuit Court jurisdiction came into effect in 2014. Unlike civil litigation there is less prospect of an adverse order for costs being granted where the Respondent successfully applies to have the case remitted from the High Court to the Circuit Court in a Judicial Separation or Divorce case. Prior to the introduction of the market value basis of valuation, McKechnie J., in B.D. v J.D. [2005]IEHC at para 20 set out that his experience was that the threshold for cases coming before the Family High Court jurisdiction in Judicial Separation and Divorce cases was €1 million which comprised all the assets, not just the family home, he stated: ‘…..in about 90% of cases that come before this Court, the monetary threshold which applies to a case in the Commercial List would be most easily satisfied. And here I am not simply referring to the value of the family home’. Note: the monetary threshold in the Commercial List at that time was €1 million.

Family Law

4. The increase in Applications under the Domestic Violence Act 2018 Continue to Rise and have more than Doubled in the past 15 years The Domestic Violence Act, 2018 came into effect on 1st January 2019 but prior to its introduction numbers of applicants were steadily rising. It is worth setting out the number of applications in the District Court for the past 24 years, the figures refer to the total number of applications for any given year for relief under the applicable Domestic Violence Act: 2020 22,970 2019 20,501 ************* introduction of Domestic Violence Act 2018 on 1st January 2019 2018 2017 2016 2015 2014 2013 2012 2011 2010

18,572 15,962 15,227 14,374 13,287 13,275 12,655 10,652 9,743 the Parchment 21


Family Law

It is to be hoped that the number of domestic violence applications will reduce, not due to a reluctance to seek assistance, but as a result of the growing societal view that domestic violence is unacceptable and from a genuine reduction in the incidents of domestic violence

2009 2008 2007 2006 2005 2004 2003

9,856 10,401 11,394 9,924 9,521 9,573 9,881

*********** Judgment delivered by Supreme Court in D.K. v Crowley, Ireland, the AG and others 09 October 2002, found that the lack of a prescribed fixed period for an interim barring order to remain in force deprives the respondent of constitutional rights to fair procedures. The Domestic Violence (Amendment) Act, 2002 remedied this problem. 2002 2001 2000 1999 1998

11,400 11,575 12,131 11,446 11,713

From 1998 it was apparent that applications pursuant to the Domestic Violence Act 1996 were rising but there was a sense in 2002 that the Supreme Court had remedied a perceived problem with the over availability of interim barring orders and it was thought by practitioners at the time that this sense of a correction or slight break being put on the Domestic Violence Act 1996 may have lead to the reduction in applications under the Domestic Violence Act. The numbers only returned to their 2002 level again in 2007 but then reduced again from 2008-2011 inclusively which matches the worst years of the economic crash. The introduction of the Domestic Violence Act 2018 which increased the remedies available to applicants does not appear to 22 the Parchment

have had a significant impact on the upward trend and we can see that in the first year of Covid, 2020, numbers accelerated upwards a little and it will be interesting to see what the numbers for 2021 will be when they are published later this year.

The Future? It is to be hoped that the number of domestic violence applications will reduce, not due to a reluctance to seek assistance, but as a result of the growing societal view that domestic violence is unacceptable and from a genuine reduction in the incidents of domestic violence. We may still be some way from this goal. The proposed third national strategy on domestic, sexual and gender based violence is due to be published later this year. We await the publication of the Family Court Bill and the Family Justice Strategy later this year – and the DSBA, Law Society and Bar Council have already made substantial submissions with regard to proposed changes. It is to be hoped that a workable system will emerge from the consultation process. However whatever the proposed changes to the family justice system, unless they are properly resourced they will run into the sand and may even make a bad system worse. Resources are the eternally missing element from family law for many years. We still await a sod being turned on the new Hammond Lane Building, childcare in Dublin is still being run from nineteenth century courts set up to deal with criminal and civil cases and the family law lists around the country are bursting with cases, many of which will not be reached. We can but hope that family law will at some point move from being the poor relation to the prodigal son or daughter. P


Spring 2022 dsba.ie Ronnie Neville is a partner in Mason Hayes & Curran’s Employment Law and Benefits Team

Employment Law

Forced Retiree Awarded €85,000 for Discrimination Ronnie Neville reviews the position on mandatory retirement ages in light of a recent Workplace Relations case

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rom a legal perspective, the setting and application of a mandatory retirement age will not constitute age discrimination provided it can be objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. In addition, offering a person over retirement age a fixed term contract shall not constitute age discrimination if it is similarly objectively justifiable. The Workplace Relations Commission (WRC) Code of Practice on Longer Working (the Code) offers important guidance for employers on the types of factors that might constitute a legitimate aim. The Code also expressly states that employers should engage and consult with employees approaching retirement age where they intend to enforce a contractual retirement age.

The Facts In the case of A Senior Staff Nurse v A Nursing Home (In Liquidation), the Complainant had been employed as a senior staff nurse with the Respondent employer. Her employment contract expressly provided that: “Retirement age is 65 years. Employment beyond retirement age is exceptional and only by agreement of the employer.” A few months before the Complainant’s 65th birthday, she was informed by letter that she would retire compulsorily upon reaching her 65th birthday as per the company retirement policy. In response, the Complainant wrote to the CEO informing her that she did not intend to retire and wished to continue her employment on the same terms. The employer agreed to permit the Complainant to remain in employment for a further year and issued her one-year contract entitled ‘Post-Retirement Fixed Term Contract of Employment’. However, the employer failed to offer the Complainant any explanation or justification as to why it believed it was a necessary and appropriate to only offer her a fixed-term contract. At the end of the fixed-term contract, the Complainant requested a further extension,

but her employer failed to meaningfully engage with this request. After pursuing the matter, the Complainant was simply informed that it would not be possible for her to remain in employment and that she would only be permitted to work until the end of her contract. The employer did not offer any rationale or objective justification for the decision to terminate her employment either verbally or in writing. The Complainant was retired compulsorily and brought a claim for age discrimination under the Employment Equality Acts 1998-2015 (as amended) (EEA). The employer was in liquidation at the time of the hearing and failed to enter any evidence in its defence. In the absence of any evidence of any explanation, or objective justification, for either the retirement age, or for the decision to issue a fixedterm contract, the WRC found in favour of the Complainant and awarded her €85,000.

Conclusion This case is another reminder to employers that they must be able to objectively justify mandatory retirement ages. Similarly, where an employer elects to offer a fixed-term contract to an employee who has reached retirement age, this decision must also be objectively justifiable. Open communication between employers and their employees who are approaching retirement age is essential. Employers should be actively engaging with the employees in the run up to their retirement, in line with the Code. Employers who operate a mandatory retirement age must have regard to the Code and they must satisfy themselves that they can stand over their retirement age in the event of a challenge. Employers who seek to blindly rely on a contractual retirement age without considering the above matters risk very costly challenges by employees who wish to continue working. Age is just a number, but it shouldn’t be an expensive one! P the Parchment 23


Online Anonymity The ability of internet users to post material anonymously has long been considered one of the great advantages of online usage, allowing as it does opinions to be expressly freely without fear of reprisal. Michael O’Doherty BL puts this troubling issue into sharp focus

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nonymity is particularly valuable when it comes to political speech, where it has encouraged dissident voices to speak out against repressive regimes, with perhaps the most famous comment being that it “is a shield from the tyranny of the majority” (The US Supreme Court in McIntyre v Ohio Election Commission 514 US 334 (1995)). It applies likewise to more mundane material, with users being able to speak freely on a range of issues and express opinions that may be unpopular with their family, friends or employers. The downside of anonymous internet use has, however, come into sharper focus in recent years. Anonymous trolling is now an everyday occurrence, with just one example being the widespread racial abuse directed towards black sports people. Many users of social media post content that insults, harasses and defames others in the belief that their anonymity prevents them from being held accountable. This article will deal with the problems caused by unlawful content posted by anonymous users, the difficulties in unmasking them, the manner in which

24 the Parchment

UK and Australian law deals with the issue, and whether the very recent Report of the Review of the Defamation Act 2009 intends to address the issue in this jurisdiction.

The issue of Online Anonymity It should be remembered that there is no fundamental legal right to anonymity. Internet users who sign up to social media platforms without giving verifiable identification, and who post material to such platforms with their true identity disguised, do so entirely at the discretion of the platform itself. Put simply, users can post material anonymously on Facebook, Instagram and Twitter, or set up fake accounts pretending to be someone else, because the social media platforms allow them to do so. A recent example of the harm that can be caused by the anonymity provided for by social media platforms can be seen in the case of English man Matthew Hardy, jailed for 9 years in January 2022 for an online campaign which saw him relentlessly harass a number of women over a 10-year period. He did so by posting messages anonymously or setting up fake accounts in


Spring 2022 dsba.ie Michael O’Doherty BL is a practising barrister, and the author of Internet Law, published by Bloomsbury Professional. Michael lectures on Internet Law in the UCD Sutherland School of Law and King’s Inn

the names of family and friends of the victims. Every time the platform would block one account, he would simply set up another fake one to target his victims. Similar difficulties have been faced in this jurisdiction. In August 2020, it was revealed that social media “influencer” Lisa McGowan had been the victim of trolling, defamation and stalking by anonymous user(s) of social media and had been obliged to apply for a court order seeking the identity of such user(s) – see https://www.bbc.com/news/uk-englandmerseyside-58933165.

How to Unmask Anonymous Users The difficulties experienced by the victims of such online behaviour are exacerbated by the fact that, when requested to reveal the identity of the author of unlawful material posted anonymously on their platform, social media platforms routinely decline to do so, citing issues pertaining to data protection and privacy. This necessitates the victim obtaining a court order via the Norwich Pharmacal procedure (Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133) to compel the platform to release such material as

IT/Defamation

they possess in respect of the anonymous user. The procedure, however, is not without its difficulties: a) The Order can currently only be obtained via an application to the High Court. This makes it a relatively time-consuming and expensive procedure before proceedings can even be instituted. The recent Report of the Review of the Defamation Act 2009 does, however, suggest that this procedure be made available at Circuit Court level, a recommendation which is certainly to be welcomed; b) Who should bear the costs of such an application is unclear, a factor which dissuades many victims from pursuing the author of unlawful comments when they are posted anonymously; c) Even if an applicant is granted an Order, the information that the intermediary often produces does not provide the correct name and address of the material’s author.

The Defences Afforded to Internet Intermediaries When the author of a defamatory statement cannot the Parchment 25


There is no provision in domestic legislation equivalent to s.5 of the UK’s 2013 Act, or the proposed Anti-Trolling legislation in Australia

be easily identified, the victim may instead consider attempting to impose liability on the internet platform that is hosting this material. The attraction of seeking to hold this intermediary liable is selfevident - they are clearly identifiable, are within the jurisdiction of the Irish courts, and are certainly a mark for any damages. In order to shield these intermediaries from a potentially vast number of legal claims, they have been provided with robust defences by both the E-Commerce Directive (Articles 12-15 of Directive 2000/31/EC) and the defence of Innocent Publication under s.27 of the Defamation Act 2009 - the section 27 defence of Innocent Publication. Both of these defences essentially insulate the online platform from liability unless the unlawful material has been brought to their attention, and even then will not be held liable for its publication so long as they act “expeditiously” to remove it. These robust defences have been perceived in some quarters as disincentivising the social media platforms from dealing with the issue of allowing its users operate anonymously, and consequently leaving a victim with no legal remedy. Attempts are being made in Australia to address this situation, with legislation that proposes to oblige social media platforms to co-operate more meaningfully with complainants, or risk losing the defences from liability which have traditionally been open to them.

The Australian and UK legislation The draft Social Media (Anti-Trolling) Bill 2021, introduced in Australia in November 2021, proposes to make social media platforms liable for all comments posted by users of social media, and to remove the defence of innocent dissemination which had previously been available to them. This apparently draconian provision is tempered by a new defence which is available to social media platforms under s.15 of the Bill. This defence requires the platform to have a “Complaints Scheme” in place, and to follow that Scheme upon receiving a complaint

26 the Parchment

from an injured party. A central pillar to the proposed Complaints Scheme is that in order for social media platforms to avoid liability, they must have up to date contact information for all their users – to include the correct name, address and email address. This can be seen as a means of both incentivising the platform to have a robust complaints procedure in place, and also to guarantee that the victim will always have an identifiable defendant against whom to institute proceedings. If the platform does not comply with the requirements and cannot provide information which reveals the identity of the anonymous user, then that defendant may be the platform itself. A similar defence has been in existence in the UK since the enactment of the 2013 Defamation Act, which created the section 5 defence for “Operators of Websites”. It provides a defence for such platforms where the complainant is not able to identify the person who posted the offensive comment, and therefore seeks to make the website liable instead. In those circumstances, the website will be able to avail of the defence if it has in place a complaints mechanism which is broadly similar to that proposed in the Australian draft legislation. The difficulty with the UK legislation, however, is that the defence of innocent publication is still open to the platform, under s.1 of the Defamation Act 1988. The reality, therefore, appears to be that the s.5 defence seldom needs to be used, in circumstances where the less onerous defence under section 1 is also available to the internet intermediary – see https://www.brettwilson. co.uk/blog/defamation-act-2013-a-summary-andoverview-six-years-on/

The Position in Ireland There is no provision in domestic legislation equivalent to s.5 of the UK’s 2013 Act, or the proposed Anti-Trolling legislation in Australia. Instead, social media platforms operate their own, self-generated notice and takedown procedures without legislative oversight (This is proposed to be amended by the provisions of the forthcoming Online Safety and Media Regulation Bill) and the speed with which they respond to complaints about defamatory material is dictated entirely by the platforms themselves. If such material is posted by anonymous users, the platforms routinely decline to divulge any information they have concerning the identity of these users, and complainants are consequently obliged to obtain a Norwich Pharmacal Order to receive such information. Furthermore, as there is no requirement for platforms to possess a verified name and address of the anonymous authors of defamatory material, this Order frequently turns out to be of little evidential value. In this regard, at least, Irish legislation appears to be lagging behind its UK and Australian counterparts. The just-published Report of the Review of the Defamation Act 2009 provided an opportunity to deal with this issue, but unfortunately the Report almost entirely ignores the issue of online anonymity. While there is a welcome recommendation that Norwich Pharmacal relief be available in the Circuit Court, this of course only deals with the fallout of anonymous trolling after the fact. No attempt is made to combat the problem of online anonymity at its source.


Spring 2022 dsba.ie

IT/Defamation

The forthcoming Online Safety and Media Regulation Bill proposes to compel social media platforms to have a robust complaints procedure in place. The draft Bill, however, specifically excludes defamatory material, and instead deals only with other types of harmful content, meaning that the absence of such a provision in the Review of the 2009 Act is particularly disappointing. Furthermore, there appears to be no requirement in the Online Safety Bill for users to provide verifiable ID when signing up to a social media platform.

Conclusion To a large extent, the trolling of individuals which is enabled by online anonymity is often viewed as collateral damage which necessarily comes with the right to online freedom of expression. While the arguments in favour of allowing users to operate anonymously when posting material are clearly understandable, the right for them to sign up to a social media platform anonymously is not so easy to defend.

The recent report by the Department of Justice into its Review of the Defamation Act 2009 suggested that there is little legislative appetite for dealing with the growing problem of online anonymity. As this article went to press, however, a draft bill to tackle the issue was being introduced before the Oireachtas by Martin Kenny TD. Details of the Social Media Platforms (Defamation Amendment) Bill 2022 are very sketchy, but it appears to follow the model of the recent Australian Social Media Bill, with the intention of making social media platforms liable for anonymous defamatory content they host when they are unable to disclose the identity of the user who posted such content. If that is the case, the proposed Bill is most welcome. It is undeniable that there is a positive side to the use of such anonymity, particularly in relation to the expression of political speech without fear of reprisal. Anonymity may well provide a shield from tyranny, and it is correct that it should do so. But the fact that it increasingly provides a camouflage for the foulest forms of abuse is surely not. P the Parchment 27


A Public Service President… Killian Morris sits down with Diego Gallagher, Senior Solicitor with TUSLA and current President of the DSBA

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iego Gallagher believes the practice of law is a vocation and is, to all intents and purposes, a “public service”. Since qualifying over 15 years ago, he has been focused on protecting the most vulnerable members of society both as part of his day job but also after he clocks off in the evening. The current President of the DSBA is very proud to be a third-generation solicitor following in the footsteps of his father, former DSBA President Brian Gallagher (Gallagher Shatter) and both of his grandfathers. I ask him whether he is the first son of a former DSBA President to be President himself and he mentions that, no, he is actually the third person to have the honour. He remembers vividly the car journeys to school with his father, with the radio on in the background, where they would discuss the issues of the day – knowing that this is what stirred the first inklings in him of the path he was to follow – “I went to Trinity and studied law there and then, when it came to getting an apprenticeship I was hired by BCM Hanby Wallace (now Byrne Wallace). I had discussed it with my Dad at the time and he encouraged me to earn my spurs and get interests in the law independent of what his interests may have been”. Having received experience in all the usual practice areas as an apprentice, he then landed in the Health and Social Care Department at BCM. He admits “this was an area of law I’d never even heard of at that stage” but now, as senior solicitor in Tusla, the Child & Family

28 the Parchment

Agency, Diego is one of the leading practitioners in the area. He remembers with fondness the time he spent in Byrne Wallace, where the Health Service Executive was his department’s biggest client. He notes, in particular, the great camaraderie amongst the team which comprised between 15 and 20 solicitors. He recalls “we would all share a bus taxi down to court each morning which was great to have the support, we all looked out for each other and would assist others in the team; say when something was going ‘pear shaped’ in court”. He is also very grateful for the opportunity it presented for him to hone his advocacy skills. As part of the service contract with the HSE, all solicitors had to do their own advocacy with counsel only to be engaged in the most exceptional cases, with specific client approval. This is something that Diego thinks more solicitors should do. Sinead Kearney, the partner in charge of the department, was a great mentor to Diego and he singles her out, in particular, for the guidance and assistance she gave him during his time at the firm. So why the move in-house? “I wanted a new challenge and the Child and Family Agency is really a great place to work; it gives me a great opportunity to continue to support the most vulnerable members of society” and we joke that he certainly doesn’t miss the pressure of billable hours and all that goes with working in private practice. He mentions that he has a wide and varied workload which has included how to deal with unaccompanied minors when mandatory quarantine was introduced, as


Spring 2022 dsba.ie Killian Morris is a partner at AMOSS. He is a member of the DSBA Parchment Committee

Interview

the Parchment 29


A significant level of collective and positive changes are required to move from an endemic culture of acceptance of behaviours that amount to bullying and harassment to one that promotes safeguards to ensure dignity at work for all

30 the Parchment

part of the government’s Covid-19 strategy, last year and now, in terms of ensuring that unaccompanied children arriving from Ukraine are equally protected and provided with appropriate care and facilities. Diego comments that the legislative framework created by the Child Care Act is robust and flexible enough to deal with these challenges - “this is where good lawyers are needed to assess what the legislation allows for and, if necessary, to identify where new legislation might be needed” he says. In terms of his day-to-day role in the Child and Family Agency he points out that Tusla has over 5,000 employees across the country and while the role generally is to ensure that the interests of children, parents and other stakeholders are protected through the law, he explains that he is involved in wardship cases, training programmes for health care professionals, regulation of health care professionals, parliamentary questions and prosecutions. Diego also notes that more recently they have had cause to engage with social media companies where there have been breaches of the in-camera rule in cases involving minors for example. There are 12 solicitors working in Tusla to cover all aspects of this work which includes managing legal work that is outsourced to 18 different member law firms around Ireland. Outside of the office, Diego Gallagher is a soccer fanatic. Named Diego, as his mother hails from Spain (and not after a certain Argentinian legend), he recalls spending every summer, as a child, with the

extended family in Spain. He remembers, in particular, a choice he regularly had to make in those hot summer days; which was to either go swimming or play football in 45 degree heat. It was never a difficult decision; he always wanted to play ball. As featured previously in the Parchment and the Law Society Gazette, Diego and DSBA colleague Matthew Kenny set up a project so refugees, from a nearby direct provision centre, could attend Shamrock Rovers home games. The project involves the provision of transport to and from all home league games along with match tickets. The plight of refugees in general is something that Diego has always been interested in, having visited and worked in refugee camps in Greece on three occasions. He is also naturally very concerned about the current situation in Ukraine where a 40 strong group of Irish lawyers, led by Eamon Conlon, are having weekly zoom meetings to discuss how they might be able to assist the Ukrainian people. He is very proud to stand with other members of the legal profession and give what he can to those in society that need the most protection. Clearly, for Diego, this doesn’t just extend to those he comes across in his day job. As a young solicitor, Diego became very involved in FLAC [Free Legal Advice Centres] and encourages all solicitors to try to give something back in this way. As President of the DSBA, improving collegiality amongst members of the profession is a key objective of his term of office and, following Covid, he is anxious to see people making those valuable connections again. The DSBA has recommenced ‘in person’ seminars as these have always been recognised as a fantastic opportunity for colleagues to meet with each other and share stories or get advice on a particularly knotty problem. Diego is clear however that the solicitors’ profession does face a number of challenges. At the forefront of his mind and something which he is anxious to promote during his term is the need to tackle and address the “endemic culture of bullying and harassment in Irish legal firms”. Following a motion put down by Diego, in the Law Society, requesting that a survey be carried out among the profession, similar to others carried out internationally, the resultant survey results are truly “devastating” reading. He gives me the headline statistics: • “One in every 2.9 females and one in every 2.3 males who responded experienced bullying. • One in every 2.3 females and one in every 8.6 males said they experienced harassment. • One in every two female respondents and one in every 8.3 male respondents said they experienced sexual harassment.” Diego has made this a priority for his presidency to try to drive some positive change on this issue; “a significant level of collective and positive changes are required to move from an endemic culture of acceptance of behaviours that amount to bullying and harassment to one that promotes safeguards to ensure dignity at work for all members of the profession at all stages of their career. We need to raise awareness and normalise the conversations or recognise that we have a problem and to be able to talk about it, to implement and revise policies and standards, to introduce regular and customised training and to gather data; we will need another survey in maybe two or three years’


Spring 2022 dsba.ie

Interview

the Parchment 31


Photography: Bryan Meade

You need solicitors who can focus, who are ready to work but not solicitors who are exhausted and stressed

32 the Parchment

time to evaluate how we have progressed.” Diego suggests that some form of mandatory CPD would be required because ensuring this problem is dealt with, goes to the heart of collegiality in the profession. Bullying and harassment also present risks from an employer’s perspective and Diego points out that the surveys suggest that the bullying and harassment is happening in all areas and in all age groups. Another challenge which is coming to the fore, following the changes experienced as a result of Covid, is the right to switch off and the pressure that younger solicitors, in particular, are under. While working from home and the flexibility it offers has its obvious advantages, it is becoming clear that some solicitors are straining under the pressure of a perceived requirement that they be always available to deal with emails from colleagues and clients at all hours of the day or night. “When I started out, I didn’t have a laptop for work. Now every junior solicitor has one. While I am realistic about this, and I did work long hours as a junior solicitor, we do need to have a conversation about this as leaders of the profession. We are delivering a service to clients. You need solicitors who can focus, who are ready to work but not solicitors who are exhausted and stressed. So I think that, as well as a conversation about remote working, we need to have a conversation about how we protect the wellbeing of solicitors.” During Lockdown, Diego walked the Wicklow Way, as far as Carlow, which he says was “great” and has played a lot more tennis. He also mentions that he even dived the “Worm Hole” on Inis Mór. For

those unaware, the Worm Hole was made famous in the Red Bull Cliff Diving World Series and involves diving from a 27m high platform and, as ancient mythology has it, the Worm Hole (also known as the “Serpent’s Lair”) is home to a sea serpent which lives beneath the entrance where the sound of the stormy winds is said to be the great serpent making his presence felt! In any case, Diego has survived to tell the tale… As for those entering the profession in 2022, he offers the following pieces of advice: “1. Pick up the phone, that is one of the first things I do when I get a new case. It is important to try to build that rapport up with a colleague. I find it makes things much easier; 2. If you're tempted to send a letter that might be written in the heat of the moment? Don't. Put it into ‘drafts’ to come back in the morning; Have a think about it; 3. With advocacy, know your judge. If you're going before a new judge and a new court; just have a word with a colleague about how the judge works and what the judge might be interested in; 4. Always ask questions, always be prepared to seek advice and help”. Diego Gallagher is a man who is proud of what he has achieved and proud to be a solicitor. He rightly believes that the work we do is genuinely a public service. He is clear that, as society changes, solicitors will continue to be on the front line of protecting the vulnerable and will continue to use their voice for the betterment of society. P



Revenue’s New Estate Clearance Procedure Finola O’Hanlon outlines the new Revenue procedure to enable a personal representative to bring his/her tax exposure in respect of the estate to an end prior to the distribution of the assets

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he role of a personal representative is open ended and does not finish simply because the assets of the estate have been gathered in and distributed. If a tax liability arises after the final distribution Revenue will assess it on the personal representative regardless of whether there are any estate funds remaining within his control. The Revenue Guide – Information on Tax after a Bereavement contains this warning: “If you distribute the estate without paying any outstanding tax due, you may have to pay the tax yourself. If you do not claim a tax refund that is due to the estate, you may have to repay the estate yourself ”. Traditionally Revenue did not issue a clearance for an estate, but a personal representative could apply for a CGT [Capital Gains Tax] letter of no audit following the sale of an asset or could ask Revenue to confirm that there were no outstanding tax issues. Following the introduction of the Form SA2 to allow the e-filing of the application for a grant of probate Revenue reviewed the process of extracting a grant and the tax issues which can arise in dealing with estates.

Due Diligence Exercise Revenue require the submission of an income tax return for the year of death, covering the period from 01 January to the date of death. This can be combined with the statement of assets and liabilities on the 34 the Parchment

Form SA2 to give a picture of the financial affairs of the deceased, and historic tax returns may be reviewed in light of the information. The onus for gathering information and ensuring tax affairs are in order rests with the personal representative, who will need to review the pre-death tax position as part of a due diligence exercise. Revenue accept that the level of due diligence involved depends on the complexity of the estate and to assist they published a due diligence questionnaire in Appendix I of the Manual that can be used to identify the tax issues that may arise. The due diligence questionnaire refers to a timeline of four years prior to death in dealing with business activities and income sources. Revenue note that this means the four calendar years prior to the year in which the death occurred, plus the year of death, so five tax years are involved. The due diligence questionnaire looks at whether assets been disposed of in the 10 years to date of death, so the “look back” period for CGT cases is longer. It should be noted that the tax years before the “look back” periods are not closed off so if a tax issue becomes apparent in the “look back” period but extends into earlier years the tax due for the earlier years should also be dealt with. For example, if the assets in the estate include a rental property acquired seven years before the death, and the income tax returns in the four years prior to death do not include any rental income, the personal representative should


Spring 2022 dsba.ie Finola O’Hanlon is a solicitor who specialises in tax advice. She is the principal of O’Hanlon Tax Limited

check whether there was rental income from the property in earlier years, and if so this needs to be returned to Revenue to bring the pre-death tax position up to date. Revenue indicate that the personal representative is expected to query matters fully but is then entitled to rely on the answers provided unless there is evidence to the contrary.

information gathering exercise to see what information is on the Revenue file but it is the last step taken after the compliance work is completed, in order to close the file. The clearance “is predicated on the submission of a complete and accurate clearance request, and confirmation that the necessary due diligence …. has been undertaken by the personal representative”.

Clearance Request

The clearance application goes in via MyEnquiries and the relevant tax head (income tax or CGT etc) and sub-category (Death case-clearance request) need to be selected. Where the deceased person was registered for multiple tax heads the most appropriate category should be chosen. The submission of an enquiry to a ‘clearance’ category will generate an automatic reply, which will be evidence of the date the submission was received (starting the 35 day clock). If the estate has materially changed and an amended Form SA.2 Statement of Affairs is delivered the Revenue should be notified via MyEnquiries and this restarts the clock on the 35 working days for the tax clearance. If a Grant is not required (for example if the only asset is a small bank account) there is no requirement to file a Form SA.2, so Revenue will need certain additional information (such as a Schedule of Assets) when the application for clearance is made.

The clearance request should not be sent in until the value of the estate has been ascertained, which will generally be in or about the time the Grant issues. The clearance request will trigger a review by a Revenue caseworker of the information provided. If the review results in the caseworker identifying matters that need to be clarified further, a Revenue reply will be sent to alert the personal representative that the clearance request has not been granted and Revenue will begin a verification check or audit. In such cases Revenue’s queries need to be dealt with and finalised before they will clear the distribution. If no issues are identified there will be no contact from Revenue and if Revenue do not respond within 35 working days (seven weeks) the executor is cleared to distribute and if any subsequent tax issues arise the liability will not be sought from the personal representative. The Revenue approach is that the clearance procedure should not be viewed as part of an

Submitting a Clearance Request

Taxation

The onus for gathering information and ensuring tax affairs are in order rests with the personal representative, who will need to review the pre-death tax position as part of a due diligence exercise the Parchment 35


Taxation

EXTRACT FROM REVENUE MANUAL (TDM PART 46-01-02) DUE DILIGENCE QUESTIONNAIRE RE PRE-DEATH POSITION

The reference to ‘four years to date of death’ means the four calendar years prior to the date of death plus the year of death

Part A. Estate Details • • • • • • • • •

Name, Address and Tax Reference Number of Deceased Date of Death DD/MM/YYYY Name and Address of Executor / Personal Representative Copy of Will attached [Yes /No] Probate granted? [Yes/No] Date: DD/MM/YYYY Net Value of Estate €…………. Market Value of joint assets not included in the Estate €…………. Market Value of any assets disposed of, including gifts, in the four years to date of death €……… Business activities and income sources (Irish and Foreign) in four years prior to death [Provide details]:

Note: the reference to ‘four years to date of death’ means the four calendar years prior to the date of death plus the year of death.

Part B. Pre-Death Revenue warn that if the answer to questions 1 to 7 and 9 to 10 is ‘No’ or the answer to questions 11 to 14 is ‘Yes’, that indicates that those matters need to be resolved before clearance can be applied for. The clearance application cannot be submitted until those matters are finalised. 1

Have all returns and payments been filed and paid for all tax heads?

Yes/No

Note: if an instalment arrangement is in place, the details will need to be reviewed with the Collector General’s office before a clearance application can be made 2

Has a Return of Income and Gains been filed for the year of death?

Yes/No

3

Are all business activities and income sources reflected in the tax returns submitted in the four years to date of death?

Yes/No

4

Are the estate assets and any jointly held assets consistent with known levels of income, inheritances, proceeds of asset disposals?

Yes/No

5

Are all assets in the last Will reflected in the estate assets or jointly held assets?

Yes/No

6

Are all estate or jointly held assets reflected in the latest Accounts and Balance Sheet of the Deceased?

Yes/No

7

Where estate or jointly held assets include residential or commercial properties, other than the PPR, was the income generated from each, if any, reflected in the tax returns submitted in the four years to date of death? If no income generated seek background / explanation.

Yes/No

8

Have assets been disposed of in the 10 years to date of death?

Yes/No

If assets have been disposed in the 10 years to date of death, details of disposals should be ascertained – Year / Asset Description / Nature of Disposal / Consideration

36 the Parchment

9

Have all such disposals been declared for CGT?

Yes/No

10

Was CGT due paid?

Yes/No

11

Was there a ‘Tax Creditor’ provision in the latest Accounts and Balance Sheet of the Deceased?

Yes/No

12

Are there any outstanding tax compliance matters in respect of which a Qualifying Disclosure should be made?

Yes/No

13

Are there any tax compliance matters that should be drawn to Revenue’s attention in connection with this application for clearance? For example, this includes any tax matters under appeal which are not yet finalised.

Yes/No

14

Are there any pending legal actions? (if not covered by the SA.2)

Yes/No


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What is the Fairest Approach for Plaintiffs? Avril Scally and Nicholas Moore consider Periodic Payment Orders and Lump Sum Awards to litigants and review a relevant decision of the High Court

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he purpose of damages in a personal injury action is to put the plaintiff in the same position they would have been in had they not suffered the tort giving rise to the injuries sustained. The aim is to achieve 100% compensation on behalf of the Plaintiff. Damages in personal injury actions will be calculated, taking into consideration the following: • Pain/suffering and loss of quality of life/enjoyment of life. • Loss of earnings because of the injury. • Loss of future income. • Future medical care. • Medical bills. When assessing the Plaintiff ’s future medical bills and expenses, a solicitor will take into consideration the need for physiotherapy, occupational therapy, speech and language therapy, aids and appliances, medical expenses (hospital/GP care and pharmacy bills), adaptation of home/purchase of new home and future care. The calculation will be based on an expert medical assessment of the life expectancy of the injured party.

The Traditional Approach – Lump Sum The approach of compensating the Plaintiff by way of lump sum payment can be problematic. If the injured 38 the Parchment

party outlives their predicted live expectancy, their lump sum award will be depleted, and they may not be able to fund their required medical care. If the Plaintiff dies before their estimated life expectancy, then they will have been over compensated. Irvine J described the lump sum award approach in Russell (minor) v HSE as ––“a crude instrument which can give rise to injustice to either party where the greater the inaccuracy of the agreed predicted life expectancy, the greater potential for injustice”.

Periodic Payment Orders The Civil Liability (Amendment) Act 2017 (‘the Act’) was passed in November 2017. The Act addresses issues raised in relation to the deficiencies, as described above, in the lump sum system. The act provided for the Irish courts to award Periodic Payment Orders (’PPO’) in cases where a plaintiff has suffered catastrophic injuries. The Act provides that the court may order those damages be paid to the Defendant for future medical treatment and care in the form of periodic payments. A PPO will be appropriate when it is in the best interests of the injured party, given the nature of their injuries and the form of award that would best meet their needs. PPOs may also be considered for damages relating to future loss of


Spring 2022 dsba.ie Avril Scally is a partner and head of Medical Negligence at Lavelle Partners Nicholas Moore is a solicitor in the Medical Negligence team at Lavelle Partners

earnings where the parties consent. A PPO will contain the amount of the award (and whether this includes future loss of earnings), specify the frequency and method of payment, specify that payments are to be made to the plaintiff throughout their life and contain a provision that the annual amount awarded will be adjusted in accordance with the Harmonised Index of Consumer Prices (HICP). A PPO may contain a provision specifying that the payment will increase or decrease by a specified amount. This is known as a ‘stepped payment’. Stepped payments will be included where it is anticipated that there will be changes in the plaintiff ’s circumstances during their life. Despite the myriad terms and conditions included in the Act to account for life expectancy, change in circumstances and changes in costs of living, some cases over the past few years show that PPOs are perhaps not the fairest way to compensate a Plaintiff in all cases.

Personal Injury Litigation

• A Plaintiff who suffers catastrophic injuries is entitled to be compensated to the extent of 100% for the loss and damage occasioned. • Damages are paid by way of a once off lump sum award calculated by reference to the Plaintiff ’s lifetime needs established as a matter of probability. • Where there is real uncertainty as to the nature and cost of a Plaintiff ’s future needs, the Court has an inherent jurisdiction to adjourn the consideration of a Plaintiff ’s future needs and make an interim award covering the Plaintiff ’s established needs for the adjourned period. • The Court notes that payments on account have been approved and made these differ from an interim payment in that they do not finally determine damages due for a specific period but are rather a down payment against the ultimate liability, when ascertained.

Some cases over the past few years show that PPOs are perhaps not the fairest way to compensate a Plaintiff in all cases

Judge Murphy’s decision has highlighted the

Hegarty (minor) v Health Service Executive practical difficulties of using the HICP index instead of a wage-based index such as in the UK [2019] – A challenge to the Periodic when the courts are seeking to ensure that a Payment Orders This case challenged whether the Plaintiff was compelled to adhere to the Act and challenged Periodic Payments Orders themselves. In her decision, Judge Murphy determined:

plaintiff will be fully compensated for their future medical treatment and support. It seems that the current legislation will need to be amended, to make the 2017 Act fit for purpose. P the Parchment 39


Proposed Personal Injury Changes Deirdre Munnelly and Teresa Love set out the proposed new changes in the Personal Injuries Resolution Board Bill 2022

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he Personal Injuries Resolution Board Bill 2022 (Bill) proposes to amend the Personal Injuries Assessment Board Act 20032019 to increase the number of personal injury claims settled through PIAB. The substantive proposed changes are:

1. The option of mediation as a means of resolving a claim This proposal is the predominant feature of the Bill. Mediation is defined as “a confidential, facilitative and voluntary process…to reach a mutually acceptable agreement to resolve the relevant claim”. Under the new proposals, the parties will be asked to consent to mediation and, if mutually agreeable, it is envisaged that the Personal Injuries Assessment Board (PIAB) will facilitate mediation via a mediation officer appointed by them. It is intended that the mediation process will operate in conjunction, but separate, to the assessment process. This means that PIAB employees would not act in the assessment and mediation of the same case. It is expected that mediation would not affect the current timeline for assessment of a claim. This means that PIAB will remain obliged to assess claims within nine months of confirmation of consent to the assessment process. An extension of six months is allowed under exceptional circumstances only. Suggested timeframes for the various stages of the mediation process are awaited e.g. the period given to: • a defendant to consent to mediation • appoint a mediator • a mediator to furnish his report, and

40 the Parchment

• furnishing documentation as between PIAB and the parties. The Bill proposed that under mediation, the parties would be free to be represented by a legal advisor or obtain independent legal advice if they so wish. The Bill is silent about who would ultimately be responsible for the costs of an unsuccessful mediator/ mediation. Would the costs of any mediation be apportioned where mediation resulted in an agreement on the apportionment of liability between the parties? This is an interesting proposed addition to the PIAB process and would represent the first involvement PIAB has had with the issue of liability. It would be very important to assess who the proposed mediators would be and what qualifications they would hold.

2. Extension of powers to cover assessment of psychological injuries, more complex injuries and those taking longer to resolve Traditionally, the PIAB has not assessed claims consisting wholly of psychological damage as these had not been quantified in the Book of Quantum. However, the Personal Injury Guidelines make provision for the assessment of injuries of a psychological nature. The Bill aims to increase the number of personal injury claims that can be resolved through PIAB by including these types of claims not previously assessed by it. Under the current system, PIAB has a maximum statutory timeframe of 15 months within which to assess any claim. With claims involving more complex injuries or injuries with a potential long-term prognosis that cannot be determined within this 15 months’


Spring 2022 dsba.ie Deirdre Munnelly is a partner in the Dispute Resolution team at Mason Hayes & Curran. Teresa Love is a Solicitor at Mason Hayes & Curran

timeframe, there is no alternative but to release the claim to be pursued through the litigation process. In those circumstances, the Bill now proposes an extension of up to two years beyond the current maximum statutory period of 15 months. It remains to be seen how many cases might fall within this umbrella and whether an extension of two years is going to be of any benefit if the claimant is facing an undetermined long-term prognosis.

3. Costs consequences for claimants The new Bill will remove judicial discretion in cases where a claimant rejects an award from PIAB but fails to get a higher award in court. The Claimant will now be faced with paying their own and the defendant’s costs in defending the litigation. This will no longer be at the discretion of judges. With the introduction of the Personal Injury Guidelines, a claim that has been assessed by PIAB but then proceeds to court will be considered by the courts using the same criteria. The Guidelines create a mandatory obligation upon the judiciary to state his or her reasons for departing from the Guidelines. This is a welcome development from a defendant’s perspective. The narrowing of the court’s discretion regarding costs increases the incentive for resolution of the claim within the procedures offered by PIAB, thereby reducing the number of claims proceeding into litigation.

4. Provision to seek proof of identity and disclosure information relating to offences The Bill requires claimants to supply their PPSN to the

Personal Injury Litigation

Board to enable verification of identity. This is intended to reduce potential for identity fraud and ensure accuracy in relation to the order to pay and payment of resolved claims. PIAB will continue to engage with the Department of Social Welfare on this. The Bill makes further provision for PIAB to report suspected offences such as fraud to An Garda Síochána.

5. Change of name The Bill also proposes a name change from the Personal Injuries Assessment Board to the Personal Injuries Resolution Board. This is reflective of greater emphasis on its proposed increased function as a dispute resolution forum.

Conclusion There is no doubt that mediation has the potential to offer a speedy non-adversarial approach. Given it is a voluntary process, it will be interesting to see the number of claimants and equally defendants that will choose to avail of/consent to the optional mediation. Some concern has been voiced by practitioners that the introduction of mediation might have the opposite effect and create additional delays or add additional costs to the PIAB process by effectively adding another layer to the existing system. At present, the procedure for covering the cost of mediation together with the actual expected costs of mediation, including the cost of legal representation on behalf of the parties, remains unknown. Accordingly, it is currently unclear whether the intended significant reduction in costs will actually be achievable when the entire cost of the mediation is factored in. P

The Bill aims to increase the number of personal injury claims that can be resolved through PIAB by including these types of claims not previously assessed by it

the Parchment 41


Statute of Limitations: The Implications of Smith v Cunningham Shane Neville and Laura Finn review a recent decision of the Court of Appeal which provides useful guidance and clarity on how the Statute of Limitations should be interpreted in professional liability cases Smith v Cunningham & Others [2021] IECA 268, Judgment dated 20th October 2021 – The Facts The plaintiff and his then wife purchased a newly constructed house in April 2006. Prior to completion of the transaction, the vendors of the property produced a certificate from an engineer in which it was confirmed that the house had been “constructed and completed in substantial compliance with” planning permission. The purchase closed in July 2006. The plaintiff and his wife separated and put the house on the market in early 2008. A purchaser was found in May 2008. During investigations by the purchaser’s solicitors, it transpired that the construction of the house was “unauthorised”, according to the local authority. That purchaser withdrew and it was not possible to sell the house prior to the economic crash due to the planning irregularities. The devalued house was later repossessed by their lender. To recoup his loss, the plaintiff sued: (a) the engineer who certified that the house had been constructed in substantial compliance with planning permission; (b) the vendors; and (c) his own solicitors (the Firm).

The Issues Subject to exceptions, the Statute of Limitations provides that a six-year limitation period applies to cases such as this. The Court of Appeal considered 42 the Parchment

whether the plaintiff ’s proceedings had been issued on time against the Firm. Proceedings were issued on 26 May 2014, nearly eight years after the house was purchased. The crux of the issues to be considered by the Court of Appeal was whether time began to run from the date in 2006 when the purchase completed or whether it should be delayed until the date in 2008 when the planning problems were discovered and the purchaser pulled out. If time began to run in 2006, then the plaintiff ’s claim was “statute barred”; if time began to run in 2008, then the plaintiff ’s claim was issued on time. The Court had regard to two important undisputed facts: • the planning issues that came to light in 2008 were present when the house was purchased in 2006 and could have been identified at that point, even if the plaintiff and the Firm were not aware of them; and • there was no suggestion by the plaintiff that the Firm knew about or had concealed the planning problems (meaning there was no alleged concealment which might have postponed the limitation period from running). The Court of Appeal had to decide when the plaintiff ’s claim “accrued” for his claim under the tort of negligence. The Statute of Limitations provides that the six-year limitation period runs “from the date on which the cause of action accrued”. As Mr Justice


Spring 2022 dsba.ie Shane Neville is a Litigation and Dispute Resolution partner at LK Shields. Laura Finn is an associate solicitor at LK Shields

Collins pointed out, this language may seem straightforward but it has generated a large and complex body of case law. For a cause of action to accrue in negligence, it is necessary for “damage” to be sustained. The Firm argued that damage occurred in 2006 when the house was purchased without being in compliance with planning permission. The plaintiff argued that the damage occurred when the would-be purchaser pulled out of the transaction in 2008. The Court of Appeal overturned the earlier judgment of the High Court. In finding in favour of the Firm and holding that the plaintiff ’s claim against the Firm was “statute barred”, Mr Justice Collins formed the view that the cause of action accrued in 2006 when the plaintiff and his then wife purchased the house with planning problems. The Court appeared to rely on the fact that the plaintiff and his then wife, if they had discovered the planning problem, could have sued the Firm the day after the purchase on the basis that damage had already occurred and the cause of action had already accrued.

Lessons The main conclusion to be drawn from this case is that a plaintiff ’s date of knowledge or whether a problem is reasonably discoverable are not

relevant to cases involving the purchase of property. The fact that it would have been very difficult for the plaintiff to discover the planning problem does not, of itself, affect when time begins to run for the purposes of the Statute of Limitations. It should be noted that the limitation period may be delayed for other reasons, such as where there is fraudulent concealment by a defendant. A discussion on these somewhat complex issues is beyond the scope of this article.

Implications The Court’s judgment is welcome in clarifying a number of fundamental issues. The introduction of the concept of “date of knowledge” in respect of personal injury claims and discussions around latent defect and property damage claims had led to a degree of confusion in the law. Mr Justice Collins expressed some dissatisfaction with the law in the area but decided that it was a policy matter for the legislature to amend as it saw fit, a position taken by the Supreme Court over 30 years earlier in Hegarty v O’ Loughran. Hegarty v O’ Loughran led to an overhaul of the Statute of Limitations for personal injury claims. Will Smith v Cunningham lead to the same outcry and action by the Oireachtas to introduce legislation similar to the UK’s Latent Damage Act? It remains to be seen. P

Litigation

The main conclusion to be drawn from this case is that a plaintiff ’s date of knowledge or whether a problem is reasonably discoverable are not relevant to cases involving the purchase of property

the Parchment 43


No-Fault Dismissals A no-fault dismissal occurs where an employer exercises a contractual right to terminate an employee’s employment with notice, but without fault or without providing a reason. Alan Devaney takes a closer look

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44 the Parchment

no-fault dismissal is permitted in law and has been recognised over the years, most recently in the 2021 case of Donal O’Donovan v Over-C Technology Limited, whereby the Court of Appeal overturned an injunction granted to an executive whose employment had been terminated on the basis of poor performance during his probationary period. The Court of Appeal in that case re-stated two clear principles as follows: Firstly, that an employer can terminate employment for any reason, or no reason, provided adequate notice is given. This applies whether or not the dismissal occurs during the probationary period. Secondly, that the principles of natural justice apply to cases involving dismissals for misconduct but not to termination on other grounds. That being said, proceeding to termination on a nofault basis is not without risk, particularly where there are disciplinary matters or underlying performance issues. Below I have set out the risks to be considered.

sexuality, age or any of the other discrimination grounds. So we can say that if an employer proceeds to terminate on a no-fault basis, an employee is likely to fall outside of the scope of the Unfair Dismissals Act unless they have 52 weeks of continuous service or one of the above exceptions apply. To mitigate the risk of a discrimination claim, it would be best to document the non-discriminative, objective basis for the no-fault dismissal. Where the employee has in excess of 52 weeks’ service and they are dismissed on a no-fault basis, they will be afforded the protections of the Unfair Dismissal legislation. In that situation, it will be difficult for an employer to stand over this type of dismissal in the absence of fair procedures and natural justice. In fact, the burden will be on the employer to prove the dismissal was fair. It is important to be aware that the maximum compensation which can be awarded for an Unfair Dismissal claim is two years’ remuneration and five years where it relates to a Protected Disclosure.

Unfair Dismissal

Recommendations

Generally, an employee cannot bring an unfair dismissal claim unless they have 52 weeks of continuous service. This is subject to certain limited exceptions (for example there is no service threshold for dismissal relating to pregnancy, trade union membership, making a protected disclosures and other grounds). In addition, there is no service threshold to bring a discriminatory dismissal claim on the grounds of their race, sex,

An employee dismissed on a no-fault basis can seek a non-binding Recommendation from the Workplace Relations Commission “WRC” under the Industrial Relations Act, 1969. This is the route usually taken when they fail to meet the service requirement under the Unfair Dismissals Acts. An employee can ask the WRC/Labour Court to examine their case and determine (by way of a non-binding recommendation)


Spring 2022 dsba.ie Alan Devaney is a solicitor in the employment group at Ronan Daly Jermyn

whether they were fairly dismissed or not. The approach of the WRC/Labour Court tends to focus on fair procedures – such as whether the employee had the right to fair procedures before they were dismissed. Typically, the WRC/Labour court find that they do – but where the employer objects in a timely manner, to being bound by the decision, the ruling will be non-binding. In certain sectors (e.g. public sector organisations) there may be a tendency to observe WRC/Labour Court rulings, but this is not obligatory.

Wrongful Dismissal/Injunctive Relief Lastly, there is a claim for wrongful dismissal, which means dismissal in breach of contract – this can only be litigated in the Courts (the Workplace Relations Commission has no jurisdiction). An employee can in theory bring a wrongful dismissal claim even during the first year – but such claims are difficult for employees to succeed in (and may become more difficult because of the O’Donovan decision – mentioned above). They tend to be confined to high-level executive roles with high salaries. An employee typically brings a wrongful dismissal claim in the first year, if they can establish that (i) they were entitled to fair procedures prior to dismissal (such as within a disciplinary process) but (ii) the employer did not afford them those fair procedures. Applying to the Courts for injunctive relief for wrongful dismissal is generally a less attractive route for a dismissed employee in view of the time and very significant expense required to take this type of action. The Courts have also shown an unwillingness to grant

Employment Law

injunctive relief to restrain a no-fault dismissal. This was the case in Bradshaw v Murphy 2014 where the High Court refused to grant an injunction to restrain a no-fault dismissal of a chef/restauranteur - despite allegations of misconduct which had not been investigated. In that case the employee had failed to meet the high bar required to secure such an injunction, namely he had not established that: 1. there is a serious issue for trial; 2. damages would be an inadequate remedy; 3. the balance of convenience lay in favour of granting the injunction. An employee will have a greater prospect of being granted injunctive relief where they have grounds to demonstrate that there was a reason for the dismissal such as for poor performance or misconduct. Essentially, in such a scenario an employee would apply to the Court seeking their rights to fair procedures so that they can address what are in their view the clear unaddressed disciplinary issues prior to any dismissal being affected. It is key that there are no live or ongoing formal disciplinary matters. The cases where employees have secured injunctions for no-fault dismissals have tended to involve scenarios where a disciplinary process was started, dropped and then replaced by a no-fault dismissal. This was the case in Grenet v Electronic Arts Ireland Limited, whereby Mr. Grenet was dismissed for allegedly making an inappropriate comment on a call with another colleague. The dismissal was subsequently withdrawn, and it was claimed that his

The cases where employees have secured injunctions for no-fault dismissals have tended to involve scenarios where a disciplinary process was started, dropped and then replaced by a no-fault dismissal the Parchment 45


In conclusion, while no-fault dismissals are possible, they are notoriously difficult to stand over and justify

46 the Parchment

employment was validly terminated on a no-fault basis. Mr. Grenet brought a successful injunction restraining his dismissal. In the O’Donovan case mentioned above, the Court of Appeal overturned the High Court’s decision and limited the circumstances in which the Court will interfere with a dismissal and grant an injunction. In that case the employee’s poor performance was brought to his attention, and the company terminated his employment with immediate effect and confirmed that the employee would be paid in lieu of notice. The employee issued injunctive proceedings in the High Court seeking to be immediately re-instated into his role and preventing the appointment of any other person into his role. The High Court granted an injunction directing that the employee be re-instated. The Court of Appeal decision overturned that decision and helpfully removed the uncertainty created by the High Court’s original decision. The Court of Appeal acknowledged the following: 1. It was accepted that the dismissal during probation was for poor performance, not misconduct. 2. The contract of employment included an express clause which permitted termination during probation for no reason. 3. The Court refused to imply a right to fair procedures into a contract. 4. The employee was dismissed pursuant to an express contractual term which entitled the employer to dismiss him if his performance was substandard. 5. The employee was appropriately paid his notice. The Court helpfully commented that the trial Judge had failed to properly consider the fact that termination occurred during the probation period. The Judge commented “During a period of probation, both parties are – and must be – free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue”.

The net result is that the number of employees seeking injunctive relief from the Court will be restricted to circumstances relating to misconduct in which no fair procedures are used. It is also important to point out that this rationale applies whether or not dismissal occurs during the probationary period. Further than that, it is possible to dismiss for poor performance without a requirement to use fair procedures. However, the application of the Unfair Dismissals Acts should always be considered. Where the dismissal relates to misconduct issues, fair procedures should always be applied. We would recommend the following be considered when exploring dismissal of a poorly performing employee on a no-fault basis: 1. Where the employee is still within their probationary period or has under 52 weeks’ service, before moving to a termination, ensure the contract of employment, particularly the probationary clauses contain scope to terminate the contract for no reason. 2. Where the employee has in excess of 52 weeks’ service or falls into one of the exceptions, a performance improvement plan should be considered in line with company policies and procedures and, depending on the outcome, a dismissal thereafter. 3. Termination in circumstances of misconduct, even during probation, should be conducted in line with the Company’s disciplinary procedures and fair procedures / natural justice. This does not necessarily have to be the full disciplinary policy but can be an abridged version. In conclusion, while no-fault dismissals are possible, they are notoriously difficult to stand over and justify. A lot will depend on the nature of the performance issues and how they have been addressed in the past. Prudent employers will ensure they obtain legal advice in advance of moving towards a no-fault dismissal. P


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Complex Management Company Agreements and Litigation Eileen Roberts shines a light on complex management company agreements and a recent High Court decision on the issue

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he Commercial Court (Barniville, J.) recently delivered judgment in Clarion Quay Management Company v Dublin City Council and Anor [2021] IEHC 811. The judgment is noteworthy for a number of reasons, including: (a) the Court's consideration and application of the rules of contractual interpretation to a complex management company agreement that incorporates the Law Society General Conditions of Sale (1995 edition): (b) the thorough discussion of the law on implied terms; (c) the guidance on, among other things, the interpretation of the Multi-Unit Developments Act 2011 (the 2011 Act), to include retrospective effect and the exclusive jurisdiction of the Circuit Court to enforce rights conferred by the 2011 Act; and (d) the fact that the judgment of the Commercial Court was delivered in respect of the trial of four agreed preliminary issues and in circumstances where there were other proceedings between the parties in both the High Court and the Circuit Court.

Background The proceedings arose from a development that comprised retail and residential units known as Clarion Quay (the Development). Dublin City Council (DCC) was the first defendant and the owner of the lands 48 the Parchment

upon which the Development had been constructed. DCC was vested with the reversionary interests in the leases, the common areas and the unlet areas of the Development. The remaining defendants were members of a partnership referred to as Campshire Partnership (Campshire) which was the developer alongside Dublin Docklands Development Authority (DDDA) for the Development. Campshire also claimed beneficial ownership of various units and parking spaces in the Development. The relationship between Campshire and DDDA was governed by a joint venture agreement (JVA). There was also a management company agreement (MCA) between the owners of the management company (Clarion), DDDA and the North Wall Quay Partnership regarding the Development. Under the MCA, DCC succeeded both the rights and obligations of the DDDA. Clarion alleged that DCC and Campshire were responsible for various defects in the Development's design, construction and certification. In July 2019, Quinn, J. directed the trial of the following four preliminary issues: (1) Whether DCC was bound by general condition 36(d) of the Law Society General Conditions of Sale (1995 edition) (the 1995 General Conditions); (2) Whether certain terms that Clarion sought to place


Spring 2022 dsba.ie Eileen Roberts is the chair of A&L Goodbody and is partner in A&L Goodbody’s Disputes and Investigations Group

reliance on were implied terms of the MCA; (3) Whether Clarion was entitled to rely on the 2011 Act in these High Court proceedings; and (4) If so, whether the 2011 Act required DCC and Campshire to complete the development of the common areas and to indemnify Clarion against any claims relating to works completed on the Development.

Decision The 1995 General Conditions In relation to the first preliminary issue, Clarion submitted that clause 10 of the MCA had the effect of incorporating general condition 36(d) of the 1995 General Conditions into the MCA. Clause 10 provided as follows: “Save insofar as same are inconsistent herewith that the Law Society General Conditions of Sale (1995 edition) shall apply to this sale. In the event of any inconsistency between presents and the said General Conditions these presents shall prevail.” On the other hand, DCC and Campshire argued that general condition 36(d) was not consistent with, among other things, clause 4 of the MCA which provided that DCC “shall not be under any obligation to complete or cause to be completed such development and may

alter such development as it may wish”. In considering the issue, Barniville, J. set out the legal principles relating to the interpretation of contracts in Irish law, with a particular emphasis placed on the “text in context” approach. The “text in context approach” requires courts to consider the text having regard to the circumstances in which the relevant contract was produced. Barniville, J. commented on the degree to which regard could be had to “commercial common sense” when interpreting contracts and highlighted the principle that courts should not, in order to give commercial efficacy to a contract, force a meaning on the language or words of a contract that those words would not otherwise bear. It was held that General Condition 36(d) was “not inconsistent” with Clause 4 of the MCA.

Implied Terms In terms of the second issue, Clarion submitted that the MCA contained various implied terms which were implied by law and on the facts. Among other things, it was alleged that there was an implied term that the Development would be constructed in a “first class state of decorative repair and condition”. In relation to Clarion's argument regarding terms that can be implied into a contract by law, reliance was placed on the judgment of Davitt P in Brown v Norton [1954] IR 35. However,

Property

Barniville, J. set out the legal principles relating to the interpretation of contracts in Irish law, with a particular emphasis placed on the “text in context” approach

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Property

Clarion sought to rely on the 2011 Act to advance its claim against Campshire in circumstances where it would have been precluded from advancing such a claim before the 2011 Act was enacted

Barniville, J. differentiated Brown from the present case on the basis that the implied terms were only allowed in the limited circumstances that reflected the specific facts of that case (the parties in Brown had entered into a contract for the sale of a dwelling house which the purchaser would be able to live in as soon as it was completed). The transaction between the parties in the present case was not such a transaction. In determining whether the terms were implied based on the facts, Barniville, J. applied the five stage test set out in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 and concluded that the terms relied on by Clarion were not implied terms of the MCA.

The 2011 Act, the Appropriate Forum for Claims and Retrospective Effect? The Court considered whether Clarion could rely on the 2011 Act in the present High Court proceedings. Clarion had a contractual relationship with DCC but not with Campshire. Clarion sought to rely on the 2011 Act to advance its claim against Campshire in circumstances where it would have been precluded from advancing such a claim before the 2011 Act was enacted on the basis of the doctrine of privity of contract. It was held that s.29 of the 2011 Act meant that Clarion could keep its contract law claim and its claim for damages for breach of statutory provisions (except for those related to the 2011 Act) in the High Court. To

the extent that Clarion sought to rely on the 2011 Act in claims against DCC, the case had to be brought in the Circuit Court. The Circuit Court has exclusive jurisdiction under section 26 of the Multi-Unit Developments Act 2011 to make orders under section 24 of the 2011 Act to enforce any rights conferred, or obligations imposed by the 2011 Act. Clarion had no contract with Campshire and its claims which were not related to the 2011 Act could be maintained in the High Court. In a similar fashion to the claims against DCC, the claims which Clarion sought to bring against Campshire in reliance on the 2011 Act had to be brought in the Circuit Court. The Court then considered whether the 2011 Act had retrospective effect in circumstances where the contracts in question had been entered into approximately 10 years before the coming into effect of the 2011 Act. Clarion submitted that the 2011 Act was intended to have retrospective effect (specifically, ss. 7, 9(2) and 31(2) and Schedule 3). DCC and Campshire argued that although ss. 4 and 5 were retrospective in nature in that they affect existing contracts regarding the transfer of common areas, the remainder of the 2011 Act could not be regarded as having retrospective effect. After engaging in a detailed consideration of the relevant principles, Barniville, J. held that the sections relied on by Clarion in the 2011 Act did not have retrospective effect. In the event that the conclusion arrived at in respect of this issue was successfully appealed, Barniville, J. went on to outline why the arguments relied on by Clarion were in any event misplaced. In relation to s.7 of the 2011 Act, it was held that no new obligations had been created other than the ones already in existence by virtue of the MCA and JVA. It was held that s.9 (2) was not a free standing indemnity and that the indemnity sought by Clarion would go beyond the contractual obligations on DCC and Campshire. In terms of s. 31(2) and schedule 3, it was held that the provisions only applied after the “development stage” which in Clarion's case, had yet to be reached.

Conclusion This comprehensive judgment outlines the rules of contractual interpretation that are applicable in this jurisdiction. Furthermore, the decision has confirmed that the Circuit Court enjoys an exclusive jurisdiction when it comes to making orders which enforce obligations or rights under the 2011 Act. The judgment provides a detailed discussion of the interpretation and scope of various provisions contained in the 2011 Act. It also underscores the willingness of the Court to tackle complex preliminary issues in litigation. While the Court expressed some reservations as to the appropriateness of selecting these four issues (which were agreed by the parties) from the range of issues in dispute between the parties, nevertheless the Court was satisfied that it could at this point in the proceedings determine the four agreed preliminary issues. P * The author would like to acknowledge the assistance and work of Shauna Keniry BL in preparing a more detailed summary of this lengthy Commercial Court judgment which is available on the website of the Commercial Litigation Association of Ireland (CLAI). 50 the Parchment


Spring 2022 dsba.ie Oisín O’Callaghan is an associate solicitor and Jenny Martin is senior associate solicitor in the Employment and Benefits Team at William Fry

Employment Law

Unfair Dismissal in a Valid Redundancy Situation The Workplace Relations Commission (WRC) recently made an award of €120,000 to a former employee where there was an unfair dismissal in a valid redundancy situation. Oisín O’Callaghan and Jenny Martin assess the case

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he case concerned a former employee (Complainant) of the Irish based sales operation of Econocom Digital Finance Ltd (Econocom). Econocom argued that the Complainant’s termination of employment was a valid redundancy arising out of the closure of its Irish based sales operation. Following his termination in July 2020, the Complainant claimed that he had been unfairly dismissed. The WRC Adjudication Officer (Adjudication Officer) accepted that a valid redundancy situation existed and that employers are entitled to close all or any part of their business. However, the WRC found that the employer did not adhere “to the standard of reasonableness that a reasonable employer would have shown” in similar circumstances. Whilst the WRC decision touched on a number of issues, it is a timely reminder to employers that redundancies are, at their core, a type of dismissal. The cloak of redundancy does not provide a waiver from the employers requirement to comply with the Unfair Dismissals Acts 1977-2015 (UD legislation).

Reasonable Procedure The UD legislation recognises the right of an employer to dismiss an employee due to redundancy. However, that right is predicated on the selection of employees for redundancy based on fairness and adherence to an agreed procedure or a code of practice regarding dismissals. In the absence of an agreed procedure, employers must ensure that fair procedures that routinely apply to any dismissal are afforded to the employee being made redundant. These include the right to notice, the right to be represented at meetings, the right of the employee to respond to the employer’s decision to make the job redundant, and the right of appeal. The Adjudication Officer noted as follows: • Right to Notice – The Complainant was not given any advance notice that his meeting with the managing director and the HR director related to a redundancy process or the termination of his employment. • Right to Representation – The Complainant

was not afforded the right to be accompanied or represented at the meeting. • Right to respond – The Complainant’s detailed response to Econocom’s decision was not properly considered by Econocom. • Appeal – The Complainant was not offered the right to appeal the decision to make his role redundant.

Consultation Requirement The Adjudication Officer described the lack of consultation afforded to the Complainant, having regard to his 15 years of service with Econocom, as “disrespectful”. The Adjudication Officer was clear that engagement with an employee who is the target of redundancy is the cornerstone of reasonable treatment. The Adjudication Officer rejected the argument that consideration of alternatives to redundancy was futile in the circumstances. She highlighted the Complainant’s skills in sales and languages, understanding of the organisation, and the international nature of Econocom – none of which were considered before the redundancy. The Adjudication Officer also criticised Econocom for not engaging with the Complainant about the payment terms of his redundancy.

Authority to Dismiss The Complainant submitted that the Managing Director of Econocom’s UK entity did not have the authority to dismiss him, as the Econocom Irish entity employed him. The Adjudication Officer found that the Managing Director had responsibility for Irish operations and despite being employed by a different legal entity, had the relevant authority to make the Complaint’s role redundant.

Conclusion The Complainant was awarded compensation of €120,000, which equated to one year’s gross pay. The WRC decision should serve as a reminder to all employers that even in a genuine redundancy situation, employees are entitled to fair and reasonable procedures, including fair and legitimate consultation. Employers should take care to properly consider each redundancy situation and engage meaningfully with affected employees. P the Parchment 51


Courts Service Guidance for Affidavits Practitioners are finding a major issue with Affidavits being returned from the Central Office. Catherine Herraghty of the Courts Service gives detailed guidance on the issue

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he title of the case should be stated clearly on all documents, if there is a Third Party in the case they should be included in the title. The record number should be stated on all documents once assigned. As per Order 117a of the Superior Court Rules all documents should be stamped with the correct stamp duty before being lodged in the Central Office. When issuing a summons, the copy with the stamp duty should be marked as “A True Copy” and the other should have an original signature. All documents for filing should have an original signature and be addressed to the appropriate parties. In a case where the Plaintiff is a minor or a person of unsound mind, the consent in writing of the Next of Friend is required. (Order 15 Rule 20) The consent should be witnessed.

Affidavits One of the documents most likely to be rejected either in person at the public counter or received by nonpersonal delivery is an affidavit. It may be helpful therefore to explore this in a little detail but it is not intended to be a comprehensive guide. The Rules of the Superior Courts should be consulted. Texts such as Stringer on “Oaths and Affirmations”, Boland & Sayer on “Oaths and Affirmations” and the “Hand Book for the use of Commissioners for Oaths” by Gerard Frewen will also be found helpful for more detailed instructions in relation to administering oaths. The requirements of the Rules of the Superior Courts as to affidavits are to be found in Order 40. This Order has been substituted in full by S. I. 127 of 2021 and came into effect on the 31st day of March 2021. For your assistance some of these requirements are outlined in brief:52 the Parchment

1. Every person empowered by law to administer an oath shall express the date on which and the place where he takes any affidavit (rule 10 (1)) Every affidavit shall be drawn up in the first person and shall be divided into paragraphs and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject matter. Every affidavit shall be written or printed book-wise (rule 12) Every affidavit shall state the description, trade, profession or employment of the deponent and: (i) the deponent’s place of business, trade, profession or employment, or (ii) the true place of abode of the deponent (rule 13) Where a deponent makes a solemn affirmation the word “Affirmed” replaces “Sworn” in the form of jurat which strictly speaking then becomes an attestation though the word jurat is widely used and accepted for either. The jurat must follow immediately after, and close to, the last line of the last paragraph of the affidavit. Particular care should be taken that there is no large gap following the final paragraph which could accommodate the jurat. While it may be written on either side of the page or in the margin the jurat cannot be split and it should reach only half way across the page so as to allow room for the deponent’s signature opposite to it. The signature of the deponent must be written opposite to the jurat. Where the affidavit is sworn by videoconference in accordance with rule 9 (2) (b) then notwithstanding rule 6, the jurat of the affidavit shall indicate the date on which the affidavit was made by the deponent, the place at which the officer was when taking the affidavit and the fact that the affidavit was sworn using a videoconference. Rule 9 (3) (h) Where an affidavit is required to be re sworn, and


Spring 2022 dsba.ie Catherine Herraghty works for the Courts Service

to guard against any misapprehension, the first jurat should be left standing and a second jurat commencing with the word “re sworn” should be placed below the earlier jurat. The placing of the letters ‘RE’ before the first word of the existing jurat and the alteration of the date therein is not acceptable. In all cases a fresh jurat must be added. While the deponent must attend on the re swearing he is not required to resign the second jurat. No affidavit having in the jurat or body thereof any interlineation, alteration, or erasure, shall without leave of the Court be filed, read, or made use of in any matter pending in Court unless the interlineation or alteration (other than by erasure) is authenticated by the initials of the person taking the affidavit, nor, in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are re-written and signed or initialled in the margin of the affidavit by the person taking it. (rule 17) A person taking an affidavit shall certify in the jurat of every affidavit taken by him: (a) that he personally knows the deponent, or (b) that the deponent has been identified to him by some person personally known to him and named in the jurat who certifies his personal knowledge of the deponent, or (c) that the identity of the deponent has been established by him by reference to a relevant document containing a photograph of the deponent before the affidavit was taken, and in a case to which paragraph (c) applies shall give particulars of the relevant document concerned. (rule 19 (1)) A person taking an affidavit shall, where it appears to him that the affidavit is to be sworn by any person who appears to be illiterate or blind: (a) ensure that the affidavit is read in his presence to the deponent and that the deponent has fully understood it, (b) in any case where the deponent appears not to be capable of understanding one of the official languages of the State, ensure that the affidavit is made as a foreign language affidavit in accordance

Affidavits

with rule 18 and is read to the deponent by a suitably qualified interpreter in the presence of the person taking the affidavit, and that the deponent has fully understood it, and (c) certify in the jurat that the affidavit was read in his presence to the deponent (in a case to which paragraph (b) refers, by a suitably qualified interpreter), that the deponent fully understood it and that the deponent made his signature or mark in his presence. (rule 19 (2)) When filing an affidavit in the Central Office you should ensure that the title is correct and that the opening paragraph and jurat should follow the provisions of the new Order 40 RSC. The common mistakes are: 2. An affidavit cannot be declared, it must be sworn or affirmed. 3. The full address of where the affidavit is sworn should be included in the jurat. 4. The jurat should clearly state that the oath taker personally knows the deponent, or the deponent has been identified to the oath taker by some person personally know to the oath taker and named in the jurat. This person should certify their knowledge of the deponent. Or that the identity of the deponent has been established by the oath taker by reference to a relevant document containing a photograph of the deponent before the affidavit was taken. 5. Where the oath taker’s signature is illegible their name should be stated beneath the signature in block capitals. 6. Every affidavit should have a filing clause, it should state the date of filing, the name of the solicitor and who they represent. Practitioners should note that, while the Court may receive any affidavit sworn for the purpose of being used in any cause or matter – notwithstanding any defect by misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof – and may direct a memorandum to be made on the document that it has been so received under Rule 22, the same discretion does not attach to the Central Office. P

When filing an affidavit in the Central Office you should ensure that the title is correct and that the opening paragraph and jurat should follow the provisions of the new Order 40 RSC

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Supreme Court Decisions on Tax Appeals Elizabeth Quinn reviews two recent decisions from the Supreme Court which refused two taxpayers permission to appeal against judgments obtained against them for tax and late interest by the Revenue Commissioners

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he two Supreme Court decisions of: Michael Gladney v Adriano Taglienti [2022] IESCDET 25 and Michael Gladney v Samantha Kavanagh [2022] IESCDET 24 are important as they helpfully illustrate for business owners the perils of failing to appeal assessments made by Revenue Commissioners (Revenue) through the proper statutory channels prior to being sued for the amount in Court. The cases were connected on the basis that the defendants were business owners of a fast-food business and had at separate times made the tax returns for that business. Following an audit of that business, assessments were made by Revenue against both defendants for the amount of tax that they were liable to pay. Neither defendant appealed the assessments. In the course of the cases, the taxpayers put forward arguments that there had been no audit, therefore there should be no assessment, also that they had been promised documents which they had no received and further that they did not understand the basis for the assessments. Given the failure to either pay the amounts in the assessments or appeal them, Revenue ultimately sued

54 the Parchment

both defendants in the High Court for the amounts specified in those assessments. Revenue was awarded summary judgments in the High Court and these judgments were upheld on appeal to the Court of Appeal. The defendants then sought to further appeal to the Supreme Court. As well as stating that there had been no audit, that they had been waiting on documents and did not understand the basis for the assessments; their lawyers also argued given the disputes between the parties, the cases should have gone to a full plenary hearing where all the facts could be determined. They also argued that failing to do so led to an absurdity, an inequality and potentially deprived the defendants of an effective remedy. In response, Revenue noted: • In accordance with S933(6)(a) of the Taxes Consolidation Act and s 111(2) of the Vat Consolidation Act 2010 an assessment to tax is final and conclusive • That the defendants had a number of opportunities to identify arguable defences before the assessment became final • That there is an extensive statutory appeals process


Spring 2022 dsba.ie Elizabeth Quinn is a partner in the Debt Recovery team at Mason Hayes & Curran

(separate to the Courts), which the defendants did not avail of • That in fact there was still an option open to the defendants to apply for permission to appeal in accordance with s933(7) of the TCA or an option to apply to the Tax Appeals Commissioner

Decision The Supreme Court rejected the application for permission to appeal the High Court rulings noting that it is “settled law that the court cannot try an issue of fact arising from an assessment made in default of a return other than through the appeals procedure provided in the relevant tax code.” It also stated that a plenary hearing could not change the amount of the Revenue’s assessment because the legislation is final and conclusive on these points. In other words, it is too late to dispute the liability once it is in Court because the legislation sets out that it is final and conclusive. There is a lot of case law around this and the defendants’ lawyers could not point to any errors in it which would lead the Court to revise this position. Ultimately the Court held that the interests of

Tax/Litigation

justice did not warrant a further appeal as the defendants had benefited from two hearings, but had not availed of the statutory appeals mechanism available in Revenue matters.

Conclusion This decision of the Supreme Court reaffirms robustly the current status quo of existing case law from Deighan v Hearne, to the more recent Forte and di Murro cases – both cases in which Mason Hayes & Curran acted for the Revenue Commissioners. Therefore, it is essential that disputes as to amount or underlying facts or circumstances should not be left until the matter is in Court, as the assessments at that stage are legally final and conclusive. It is firmly settled law that if a taxpayer wishes to dispute an assessment made by Revenue, it is imperative they avail of the statutory appeal channels set in place by the Oireachtas to do so. The Courts cannot be used as an alternative way to appeal assessments to tax. P

It is essential that disputes as to amount or underlying facts or circumstances should not be left until the matter is in Court, as the assessments at that stage are legally final and conclusive the Parchment 55


Highlights of the Data Protection Commission’s 2021 Annual Report Paul Lavery, Laura Lambe and Ruth Hughes pore over the Data Protection Commission’s recently published 2021 annual report covering its regulatory activities between 1 January 2021 and 31 December 2021

T 56 the Parchment

he annual report (the “Report”) highlights that the Data Protection Commission (“DPC”) concluded a number of large-scale inquiries in 2021 resulting in decisions on infringements and in many cases the imposition of corrective measures. 2021 also saw a high volume of complaints and data breaches, a trend we can expect to continue in 2022.

for persistently contacting customers who had opted out of correspondence. • 5 large-scale inquiries concluded. • €225 million fine imposed on WhatsApp Ireland Ltd in addition to an order for WhatsApp to bring its processing into compliance with the GDPR. • DPC staff numbers increased to 190 and the DPC’s budget increased to €19.1 million (with a further increase to €23.2 million for 2022).

Notable highlights include: • 7,469 queries and 3,419 complaints received under the GDPR (an increase of 7% on 2020 figures). • 49 complaints handled under the Law Enforcement Directive. • 6,549 valid data breach notifications received with 95% of total recorded breach cases concluded in 2021. • 138 electronic direct marketing investigations concluded and 2 prosecutions of telco companies

Complaints Access requests continue to be the largest category of complaints to the DPC in 2021 (42%) followed by fair processing (19%), disclosures (10%), the right to erasure (9%) and direct marketing (4%). The Report notes that the DPC intends to increase its enforcement in the area of access requests in 2022 and target non-responses and inadequate responses from controllers. The DPC concluded 150 electronic direct marketing investigations in 2021, with 84 complaints relating


Spring 2022 dsba.ie Paul Lavery is head of the Technology and Innovation Group at McCann Fitzgerald. Ruth Hughes is an associate solicitor in the Technology and Innovation Group at McCann Fitzgerald. Laura Lambe is a trainee solicitor at McCann Fitzgerald

to email messages and 43 complaints relating to text messages. Of the 3,564 complaints concluded by the DPC in 2021, 463 of those complaints were concluded by fast-track amicable means. According to the Report, the DPC will seek to resolve data protection issues through rapid direct intervention rather than launching an inquiry, where immediate action is required.

Data Breaches

Cookies Investigations

Statutory Inquiries

The DPC continued to tackle issues around the setting of tracking and advertising cookies without consent, the use of cookie banners that obscured the text of cookies and privacy notices on websites and the use of pre-ticked boxes or toggles to signal consent for cookies. Investigations and enforcement in this area will continue to be a key element of the DPC’s activities in the coming years, particularly in anticipation of the implementation of the long-awaited ePrivacy Regulation.

Data Protection

The DPC received a total of 6,549 valid notifications of personal data breaches in 2021. In line with previous years, the highest category of data breaches notified in 2021 was in relation to unauthorised disclosures, which accounted for 71% of total breach notifications. The DPC received 38 valid data breach notifications under the ePrivacy Regulations and 51 notifications in relation to the Law Enforcement Directive. The Report highlights five inquiries concluded in 2021 that resulted in a significant sanction or corrective measure. These inquiries involved the Irish Credit Bureau, MOVE Ireland, Limerick City and County Council, the Teaching Council and WhatsApp. In particular, the inquiry concerning WhatsApp Ireland, which concluded in September 2021, resulted in a fine of €225 million along with an order directing WhatsApp to bring its processing into compliance with the GDPR. the Parchment 57


The DPC found that certain CCTV systems operated by the Council were unlawful and imposed a temporary ban on the Council’s processing of personal data in respect of certain CCTV cameras and an administrative fine of €110,000 The DPC also issued a significant decision to Limerick City and County Council considering a broad range of issues pertaining to surveillance technologies deployed by the Council. The DPC found that certain CCTV systems operated by the Council were unlawful and imposed a temporary ban on the Council’s processing of personal data in respect of certain CCTV cameras and an administrative fine of €110,000.

Ongoing Inquiries At the end of December 2021, the DPC had 81 open statutory inquiries, 30 of which were cross-border inquiries. The inquiries are either complaint-based or own volition inquiries. Some of the high-profile crossborder inquiries include: • Apple –There is a complaint-based inquiry into Apple examining whether Apple has a lawful basis for processing personal data in the context of targeted advertising in connection with the unique Apple “Identifier for Advertising”. • Facebook – There are 10 separate inquiries into Facebook Ireland Limited (now known as Meta Platforms Limited) which examine a range of issues including Facebook’s compliance with the transfer restrictions under Chapter V of the GDPR in light of the Schrems II decision by the CJEU. On 21 February 2022, the DPC issued a revised preliminary decision in respect of this inquiry which seeks to suspend the data transfers in question. Facebook had 28 days to make submissions on this preliminary decision. The DPC has now granted a short extension to some of the interested parties and expects to have worked through those submissions by mid April. • Google – There are two inquiries into Google Ireland Limited. One of these examines whether Google has a valid legal basis for the processing of location data of its users and the other concerns Google’s compliance with legal obligations as a controller in operating its proprietary “Authorised Buyers” real time bidding advertising technology system. • LinkedIn – There is a complaint-based inquiry into LinkedIn examining whether it has discharged its obligations in respect of the lawful basis on which it relies to process personal data in the context of behavioural analysis and targeted advertising on its platform. • Yahoo – The DPC is conducting an inquiry into Yahoo’s compliance with the requirement to provide transparent information to data subjects under Articles 12-14 GDPR. • Twitter – The DPC is conducting an inquiry into Twitter which was commenced in response to a large number of breaches notified to the DPC since 25 May 58 the Parchment

2018, with the DPC examining whether Twitter has discharged its obligations to implement appropriate technical and organisational measures to secure the user personal data. • TikTok – The DPC commenced two inquiries into the activities of TikTok in 2021, one relating to the legality of data transfers from the EU to China and the other relating to the company’s handling of the personal data of users aged under 18.

Fundamentals for a Child-Oriented Approach to Data Processing In December 2021, the DPC published its final guidance on Fundamentals for a Child-Oriented Approach to Data Processing with immediate application and operational effect.

Data Protection Officers (DPOs) The DPC concluded the most recent stage of its DPO enforcement programme aimed at improving compliance with Article 37(7) of the GDPR, which mandates that specific categories of data controller, such as public bodies, are required to appoint a DPO and notify the DPO’s details to the relevant Supervisory Authority. The Report notes that the initial phase of the enforcement programme raised the public sector’s compliance rate from 69% to near 100%. In 2021, the DPC expanded the project to include the private sector, identifying several sectors likely to meet the threshold to appoint a DPO such as private hospitals and out-of-hours GP Services, banking entities, and credit unions. This initiative has resulted in 170 additional organisations now complying with their Article 37(7) obligations. The DPC’s commitment to supporting DPOs as part of its DPO Network is reiterated in its Regulatory Strategy 2022 – 2027. In addition, a series of online webinars supporting SMEs in their compliance efforts can be found on the Association of Data Protection Officers’ website dpo.ie.

Binding Corporate Rules A key focus of the DPC in the area of international transfers is the assessment and approval of Binding Corporate Rules (“BCR”) applications from multinationals seeking to take a uniform approach where they have subsidiaries on a global scale and are transferring data between them. In 2021, the DPC was lead reviewer in 33 applications from 19 different companies and acted as co-reviewer or on drafting teams for Article 64 Opinions on 13 BCRs in this period.

What’s Next? In December 2021, the DPC published its Regulatory Strategy for the next five years which focuses on regulating consistently and efficiently; safeguarding individuals and promoting data protection awareness; the protection of children and other vulnerable groups; bringing clarity to stakeholders; and supporting organisations to drive compliance. The Report indicates that the DPC will continue its focus on cookies investigations and enforcement actions throughout 2022, having regard to proposed reform in this area in the form of the European Commission’s proposed Digital Services Act, Digital Markets Act and the long-awaited e-Privacy Regulation. P


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Test for Dishonesty Clarified The Court of Appeal, in Law Society of Ireland v Kathleen Doocey, has recently clarified the constituent elements of dishonesty in the context of professional disciplinary proceedings. Stephen McLoughlin and James Meighan assess the Court ruling

T

his judgment will be of particular interest to statutory regulators and practitioners in the area and it will aid regulators in establishing whether the conduct of a particular registrant can be regarded as dishonest.

Solicitors Disciplinary Tribunal and High Court Kathleen Doocey (“the solicitor”) was a solicitor in practice in County Mayo. Following a Law Society investigation, the solicitor was the subject of a complaint to the Solicitors Disciplinary Tribunal (“Tribunal”). The solicitor made admissions to 24 allegations of professional misconduct relating to a deficit of €169,000 on her client account, financial irregularities, including engaging in irregular transactions known as teeming and lading, constituting a serious departure from the requirements of the Solicitors Accounts Regulations. The Tribunal recommended that the appropriate sanction to be applied was that the solicitor’s practising certificate would be subject to certain conditions. In accordance with its statutory obligation, the Law Society brought the Tribunal’s report to the High Court and, notwithstanding the recommendation of the Tribunal, the Society, per its statutory entitlement, sought an order striking the respondent’s name from the Roll of Solicitors. The President of the High Court, Ms Justice Irvine, acceded to the Society’s application and made an order striking the solicitor’s name from the Roll of Solicitors. The President stated that the solicitor’s conduct was a complete abuse of the trust and confidence which clients are entitled to expect from their solicitor and the behaviour was at the uppermost end of the scale of seriousness. The High Court concluded that a strike off was

60 the Parchment

necessary to discourage other solicitors from engaging in behaviour of this nature and to preserve public confidence in the profession.

Court of Appeal The solicitor appealed the President’s decision to the Court of Appeal. In her appeal, the solicitor argued inter alia that there was no finding of dishonesty by the Tribunal, with the effect that the President erred in finding the solicitor guilty of dishonesty in her imposition of sanction. As there was no express reference to “dishonesty” in the admitted allegations, the Court of Appeal observed that the real issue was whether the admitted findings of misconduct amounted to dishonesty on her part. In examining this issue, the Court was obliged to consider the appropriate test for dishonesty in professional disciplinary proceedings. The Court of Appeal carefully considered the case law on dishonesty and concluded that the appropriate test for dishonesty was objective in nature, in that the test for dishonesty was to be judged by the standards of ordinary reasonable persons and did not require proof that the solicitor knew or appreciated that their conduct was dishonest. In that regard, the Court relied on two previous decisions of the Court, wherein the Court held that dishonesty in criminal law is to be assessed on an objective basis. The court also noted the UK decisions in Ivey v Genting Casinos and Solicitors Regulatory Authority v Wingate in which it was held that the test for determining whether conduct was dishonest was to be judged by the standards of ordinary persons and that, once the court or tribunal is satisfied as to the individual’s knowledge or belief as to the facts, it is not necessary to prove that the individual knew that the conduct was dishonest.


Spring 2022 dsba.ie Stephen McLoughlin is a partner and head of the Regulatory Group at Addleshaw Goddard. James Meighan is an associate solicitor and member of the Regulatory Group at Addleshaw Goddard

Further, the Court of Appeal stated that dishonesty must not be judged on a standard that leaves it to the individual solicitor’s understanding of dishonesty. The Court held that the rationale of the disciplinary code would be shaken if the amoral solicitor, who simply does not advent to the possibility of dishonesty, can escape severe sanction for their otherwise deliberate actions which are objectively dishonest. The court concluded that the appropriate test to assess whether behaviour is dishonest is an objective one i.e. whether the conduct is dishonest will be judged by the standards of ordinary reasonable persons. The court noted that there is a subjective element in that there is a requirement that there must be proof that the solicitor intended to do the proposed acts. Once this has been demonstrated, there is no requirement to prove that the solicitor had knowledge or belief that the conduct was dishonest. On the facts of the appeal, the court rejected the submission of the solicitor in which she claimed that the admitted misconduct was not dishonest but was due to her chaotic and haphazard approach to bookkeeping and due to her inexperience and as a result of the pressure she was under due to a cyberattack. The Court held that identifying dishonest conduct was not unduly difficult, that it is based on the shared values of the community and that certain language connotes dishonesty. The court noted the decision of inter alia McKechnie J. in Carroll v Law Society of Ireland where a complaint of unlawfully depriving a client of money and detaining it without just cause and providing false and misleading information involved elements of dishonesty, even though there was no express reference to same. The Court noted this case involved deliberate and

systematic actions carried out by the solicitor herself, including systematic teeming and lading, wrongfully crediting money and misdescribing it in the client account books, on occasion concealing shortfalls in clients’ account books and on one occasion taking money from one client account and lodging it to the office account and failing to record this receipt and payment in the client books of account thereby concealing the misappropriation. This conduct was not accidental and the Court was satisfied that she had actual knowledge of the factual situation. Considering all of the facts, the Court stated that there could be no other explanation other than that the behaviour of the solicitor amounted objectively to dishonesty. The court dismissed the solicitor’s appeal and upheld the decision of the President to strike her name from the Roll of Solicitors.

Conclusion The decision in this case brings clarity to the law on the understanding of dishonesty in professional disciplinary proceedings. In rejecting the solicitor’s arguments on dishonesty, the court confirmed that the test is an objective one i.e. the question of whether the act complained of is dishonest is to be judged by the standards of ordinary reasonable persons. There is a minor subjective element in the test in that it must be proved that the solicitor knew or intended to do the proposed acts. Once this is proved, it is not necessary to demonstrate that the solicitor knew that the conduct was dishonest. The judgment in this case will offer some welcome clarity to statutory regulators, representative bodies and practitioners in the area in assessing whether the conduct of registrants meets the appropriate standard to be regarded as dishonest behaviour. P

Disciplinary

In rejecting the solicitor’s arguments on dishonesty, the court confirmed that the test is an objective one i.e. the question of whether the act complained of is dishonest is to be judged by the standards of ordinary reasonable persons

the Parchment 61


THE CENTRAL OFFICE As our members will have noticed, the central office is now operating on an appointment only basis and this will be the case for the foreseeable future. Regarding this and any concerns practitioners may have where they have urgent matters, will you please note the following: 1. The courts service has confirmed to me that every email for an appointment will be responded to within 15 minutes. 2. Each appointment is for a ten-minute slot. There are reasons for this, but please note

that they have made it clear to me that anyone can book several appointments in a row if they have a number of documents that are going to take longer than ten minutes. There’s nothing to stop any office doing that. 3. In urgent cases I have been assured that practitioners will be facilitated as quickly as possible. 4. The central office has indicated that a number of practitioners book appointments and then do not attend. There will of course

be occasions where the appointment has to be cancelled and they have asked if practitioners could please make sure they cancel the appointment. There will be absolutely no difficulty in doing so, and it will allow other members to get a quick appointment. DSBA Litigation Committee

DUBLIN CIVIL CIRCUIT COURT MOTION LIST Recent measures announced by the Dublin Civil Office to address delays caused by Covid-19 are very welcome. The process is ongoing, and it is important that practitioners regularly check the “News” section of Courts.ie, together with the Legal Diaries to ensure they don’t miss date changes relevant to their cases as separate notifications will not issue to firms. 1. County Registrar Motions The following date changes have been made: Original Date 8 November 2022 15 November 2022 22 November 2022 29 November 2022 6 December 2022 13 December 2022 20 December 2022 17 January 2023 24 January 2023 31 January 2023 7 February 2023 14 February 2023 21 February 2023 28 February 2023 7 March 2023 14 March 2023 21 March 2023 28 March 2023 4 April 2023 11 April 2023 18 April 2023 25 April 2023 7 May 2023 9 May 2023 16 May 2023 23 May 2023 30 May 2023

New Date 26 April 2022 26 April 2022 3 May 2022 3 May 2022 5 May 2022 5 May 2022 10 May 2022 10 May 2022 12 May 2022 12 May 2022 16 May 2022 16 May 2022 17 May 2022 17 May 2022 18 May 2022 18 May 2022 19 May 2022 19 May 2022 20 May 2022 20 May 2022 23 May 2022 23 May 2022 24 May 2022 24 May 2022 26 May 2022 26 May 2022 27 May 2022

The lists will be limited to 100 motions each and practitioners should check the Legal Diary for the relevant new date to confirm their matter is listed. 62 the Parchment

The moving party in each application must notify the respondent of the new hearing date and proof of such notification will be required for Court. It is no longer necessary to lodge motion booklets/booklets of pleadings with Dublin Civil Office or Dublin Family Office in advance of County Registrar matters, and such booklets

should be handed into Court on the day of the hearing and will be returned to the practitioner in Court. Motion booklets/ booklets of pleadings are no longer accepted by Dublin Civil Office or Dublin Circuit Family Office. DSBA Litigation Committee


Spring 2022 dsba.ie

In Practice / News

POST COVID HEARINGS Gradually the courts are beginning to get back to some form of normality. The number of persons who can attend within a court has increased and practitioners should exercise their discretion where appropriate. Where they aren’t involved in a case they should ideally stay outside the courtroom. It is the courts service’s intention and the judiciary’s intention that personal hearings return. However, one of the benefits of

Covid, has been the remote call over which practitioners, judges and the courts service have found to be a most useful vehicle. In accordance with this, it is the courts service’s intention that call overs continue remotely. Regarding motions, if there is a complicated motion that’s going to take some time, the courts are happy to deal with that on a personal basis. Ideally all brief motions based on affidavit can continue to be dealt with remotely,

thus saving time. Neither the judiciary nor the courts service have any objection to personal hearings per se. Each applicant can apply to the courts service to indicate the manner in which they wish to attend. DSBA Litigation Committee

Recently Enacted ConveyancingRelated Legislation 1. Residential Tenancies (Amendment) Act 2021 (enacted 11 December 2021) As of 11 December 2021, annual rent increases for both new and existing tenancies in Rent Pressure Zones in line with the market rent cannot exceed the lower of (a) inflation as recorded in the Harmonised Index of Consumer Prices and (b) 2% per annum on a pro rata basis. The Act also removes a landlord’s statutory right to terminate all new Part 4 tenancies created on or after 11 June 2022 without reason at the end of 6 years, so that the protection from termination provided for such Part 4 tenancies is of unlimited duration. This means that Part 4 tenancies created on or after 11 June 2022 may only be terminated by a landlord for the specific reasons set out in section 34 of the Residential Tenancies Act 2004. 2. Planning and Development (Amendment) (Large-scale Residential Development) Act 2021 (enacted 14 December 2021) This Act amends and extends the Planning and Development Acts 2000 to 2021 in relation to applications for planning permission for certain largescale residential development. It also amends Part V of the Planning and Development Act 2000 so that the need for housing for owner-occupiers can be taken into account in housing strategies and it makes provision in

relation to applications to the Supreme Court to determine certain appeals. 3. Land Registration Rules 2021 (enacted 16 December 2021) These rules amend the provisions for the registration of easement and profits a prendre pursuant to Section 49A of the Registration of Title Act 1964 (as amended by the Land and Conveyancing Law Reform Act 2021). These rules also amend the provisions for the registration of judgment mortgages pursuant to Section 116 of the Land and Conveyancing Law Reform Act 2009 to specifically include judgments of the Court of Appeal. Amendments have been introduced in respect of Land Registry Forms 3, 5, 6, 57B, 60, 60A, 61, 64, 68, 84 and 96. In particular, solicitors should note the following amendment in bold made to Form 3: “The property in or over which the estate or interest acquired by the conveyance (or, other instrument) exists is shown for identification edged red [and lettered] on the application map lodged herewith”. 4. Electronic Commerce Act 2000 (Application of sections 12 to 23 to Registered Land) Regulations 2022 (enacted 9 February 2022) Sections 12 to 23 of the Electronic Commerce Act 2000 shall now apply to the law governing the manner in which an interest in registered land may be created,

acquired, disposed of or registered. Further guidance may be required to ascertain whether a public body could refuse to accept an electronically signed document even if it is validly executed pursuant to s13 and therefore it would be advisable to confirm with the Property Registration Authority that it is willing to accept electronically executed documents. 5. Planning and Development Act (Exempted Development) Regulations 2022 (enacted on 21 February 2022) These Regulations extend, until 31 December 2025, the exempted development provisions of article 10 (6) of the Planning and Development Regulations 2001 (as amended) exempting development consisting of change of use, and any related works, from an existing specified use class to residential use (in certain circumstance and subject to conditions and limitations), from the requirement to obtain planning permission. The Regulations also add a new use class (Clause 12 – public houses), to the specified use classes that can qualify to avail of the planning exemption (subject to certain conditions and limitations). NOTE: None of the above is a substitute for reading the legislation itself and is only intended as a short summary of the relevant provisions and legislation referenced. DSBA Property Committee the Parchment 63


Closing Argument Stuart Gilhooly

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

New Defamation Laws Could Cause Serious Harm

N

obody wants to go back to the Seventies or the Eighties. Apart from the music and the football -– they were a grim time. Huge inflation, poor standards of living followed by mass emigration. Not one for rose-tinted glasses if you were trying to make a living. But while the 21st century has improved the lifestyles of most people in this country, it is sometimes hard not to look back at a time, not so long gone, when the ordinary citizen mattered. When the working classes had a voice and mob social media wasn’t able to run riot. Of course, that was a time when bishops held sway and we rightly feel that we are well rid of that influence. But have we replaced the church with worship at the altar of big business? No one doubts the importance of modernisation and certainly investment in the court system would be a massive benefit but do we have to kow-tow to the business community on every issue even if it is to the detriment of our citizens? This column has spoken ad nauseam about the effect of massively reduced damages on the average injury victim and the last column spoke at length about how access to justice was becoming more remote rather than seeing any improvement. The latest development in the seemingly neverending erosion of consumer rights is the proposed changes in the laws of defamation. The headlines have been dominated by the suggested abolition of juries and the SLAPP provisions to stop the abuse of process in defamation litigation. The report underpinning this review, which was necessary under the 2009 64 the Parchment

Defamation Act, was broadly welcomed and this column has yet to see any criticism of any of its suggestions. While this would usually indicate a set of reforms which are universally acceptable, it must be caveated by the environment in which they arrived. First, the nation (and most of the rest of the world) has been preoccupied by a war in Ukraine and its global consequences. However, just as importantly, media has not exercised a critical faculty on an issue for which it has only ever taken one side. Indeed, the only critical commentary emanated from leader writers opining that the reforms didn’t go far enough. And this is where it gets interesting. While the issue of juries and the damages they award has undoubtedly created unnecessary litigation over the years, a live debate over whether the draconian solution of removing them altogether is appropriate needs to be had and should not just be presented as an inarguable fait accompli. But the real stealth assassin hidden away in the middle of the report is the proposal to introduce a new threshold for recovery of damages in what are known as transient defamation cases or more commonly “retail defamation.” These are cases that typically arise where a person is falsely accused of shoplifting. This happens many times a day and most people brush it off and take no notice of it. However, there are certain occasions when the accusation is so serious, brazen or subsequently ignored by management that the victim seeks recompense for the embarrassment and trauma felt in what is usually a small, close knit community. Case law has already set the burden of

The only conclusion this column can reach is that big business matters and average shopgoing consumers don’t

proof against the Plaintiff at an extremely high level by the requirement to prove malice and thus escape the regular defence of qualified privilege. However, this is not enough for the highly influential big business lobby who have persuaded the review group that in these cases only, “serious harm” must now be proved in order to recover damages. The media lobby had sought this requirement for all defamation cases but the report has recommended that it apply only to retail cases. The rationale for this distinction is not properly explained in the report. In both cases, it was felt that such a requirement may create constitutional issues and at the very least would increase the costs of litigation in this area. The only conclusion this column can reach is that big business matters and average shop-going consumers don’t. The report is clear that pressure from business lobbies was a factor in its thinking. The argument will no doubt be made that proving serious harm shouldn’t be an onerous burden. Well, the case law in the UK suggests otherwise. Whereas personal injuries can be proven by medical evidence, how does an ordinary Joe Citizen prove serious harm to their reputation and standing in the community? Are we to have the unseemly sight of local witnesses testifying of their lowered view of the Plaintiff? It is another example of the insidious erosion of what were once seen as basic human rights, in this instance, the right to a good name. We need to produce a modern, functioning commercial legal system but not at the expense of the person on the street. P


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