Parchment Spring 2023

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New Personal Injuries Resolution Board Act introduced





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The DSBA has moved….

After several years on Dawson Street, the Of ce of the DSBA has moved to

Please note our new address and DX below:

Welcome to the Spring edition of the Parchment. There are some important changes in the law taking effect and with the Assisted Decision-Making (Capacity) Act 201 coming into force at the end of April, barristers Emma Slattery and Aisling Mulligan’s article provides useful practical points on the application of the new legislation on Enduring Powers of Attorney.

There has been significant change on the personal injury landscape since the new Guidelines were introduced in April 2021. This change continues with the introduction of the Personal Injuries esolution Board Act 2022 coming into operation on the 13th February 2023. Michael Mulcahy S.C. in his article outlines the new changes which are important for practitioners to note.

The DSBA made comprehensive submissions to the Civil Legal Aid eview Group earlier this year. An overview of the DSBA submissions are set out on pages 1 -1 . DSBA President Susan Martin has been an ardent

advocate for an increase in legal aid resources and other reforms.

eith Walsh and Julie Doyle interview John McDaid, former CEO of the Legal Aid Board and well-known solicitor Fred Logue respectively. A most successful DSBA Annual Dinner and Book Awards was held in Dublin in February. We have coverage of the winners of the prestigious Book Awards as well as two pages of photographs in the photocall section of this edition. We sadly lost obert Purcell and Jeanne Cullen since our last publication and we extend sympathies to the bereaved family and friends of our former colleagues. ews of solicitors Simon McAleese and Geoffrey Shannon’s nominations to the Circuit Court bench has been greeted with much delight. We wish them both well in their new appointments.

Have a great Easter break.

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 of cial 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

DSBA COUNCIL 2022/2023 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
The Dublin Solicitors Bar Association PUBLISHED
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: DX 200206 Capel Building W: ADVERTISING ENQUIRIES Sharon Hughes T: 086 871 9600
GERARD O’CONNELL Chair of the Parchment Committee
of the goods, services and courses advertised. All prices are correct at time of going to press. Views expressed are not necessarily those of the DSBA or the publisher. No part of this publication may be reproduced in any form without prior written permission from the publishers.
SUSAN MARTIN DSBA President MATTHEW KENNY DSBA Vice President PAUL RYAN CPD Director Commercial Committee NIALL CAWLEY Honorary Treasurer JOAN DORAN Secretary KILLIAN O’REILLY Chair of Litigation Committee AVRIL MANGAN CIARA O’KENNEDY Chair of Employment Law Committee CIARA HALLINAN Chair of Criminal Law EIMEAR O’DOHERTY Chair of Inhouse the Capel Building, Dublin 7. STEFAN O’CONNOR PATRICK LONGWORTH Chair of the Younger Members Committee JESSICA HICKEY

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DSBA Law Book Awards

The prestigious DSBA Law Book Awards were held in February where the winners were toasted and celebrated




– Making a Difference

Keith Walsh SC cross examines the former Legal Aid Board CEO who made a lasting difference to the family justice system

The Future of Civil Legal Aid

Keith Walsh SC updates us on the DSBA submissions to the Review Group on Civil Legal Aid

New Regime for Enduring Powers of Attorney

Emma Slattery BL and Aisling Mulligan BL look at the new process for creating an EPA

Providing for Vulnerable Beneficiaries – Tax Aspects

Brian Broderick examines some of the tax issues that frequently arise where provision is made for vulnerable bene ciaries

Right Said Fred

Julie Doyle caught up with Dr. Fred Logue, managing partner of FP Logue LLP

Significant Changes in Personal Injury Litigation

Michael Mulcahy SC analyses the key changes introduced in the Personal Injuries Resolution Board Act 2022

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If you promote legal aid in a way that increases demand, it is very important that the resources are in place to meet that extra demand
12 Dublin Solicitors Bar Association Unit 206,The Capel Building, Mary’s Abbey, Dublin 7, Ireland T: 01 670 6089 E: W: 12 18 22 26
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Are you Instructing the Correct Expert?

Nicholas Moore assesses two recent cases on the importance of obtaining the correct expert opinion in medical negligence and personal injury cases

Transparent Employment Contracts

Ciara O’Kennedy reviews a recent EU Regulation and spells out the implications for employers

Moving on from Maintenance of the Status Quo

Gavan Carty scrutinises the position today of the ancient torts of champerty and maintenance

The Judges’ Rules

DSBA President Susan Martin examines the Judges’ Rules that guide police in taking statements from suspects

Employment Investment Incentive Scheme

Kristofer O’Shea reviews the scheme providing businesses with funding and investors with tax relief

Data Breach Claims Update

Laura Fannin and John Deignan report on recent developments regarding Data Protection breach litigation

Security for Costs

Catherine Derrig and Patrick Longworth assess a recent High Court judgment affecting companies outside of Ireland

Contents 01 Editor’s Note 04 President’s Message 60 In Practice / News 63 Photocall Spring 2023 the Parchment 3
REGULAR FEATURES 32 38 58 40 46 50 52 54 56 58

DSBA Work Continues Apace

At the end of the first quarter of the year, I am pleased to let you know that the work of the DSBA continues unabated. This is in large part thanks to the hard work and dedication of its committees and the support of our members without whom we could not do everything that we do.

In February we held our Annual Dinner and Law Book Awards for the first time in three years. It was a most enjoyable evening with a really convivial and collegiate atmosphere. We were lucky enough to have an address from our new Attorney-General which was thoughtful and incisive and spoke to the importance of law books. There was a terrific response from our membership to the event which was quickly sold out.

The Law Book Awards owe their existence to our Past President eith Walsh and are now in their 10th year. eith continues his involvement as a judge and in organising the awards and I would like to thank him for his assistance this year. The books considered for the awards were published in the years 2020 and 2021 and the authors and publishers deserve so much credit for persisting in the publication of these law books during what must have been a difficult time, in the pandemic. Their work is indispensable to the profession. I also wish to thank very sincerely our sponsors – ByrneWallace, Peter Fit patrick Co Legal Costs Accountants and Law Society Skillsnet and indeed our members – without you it would not have been possible to hold this event.

During February we made submissions to the eview of the Civil Legal Aid Scheme, more details of which can be found on our website. Legal Aid is critical in the framework of the administration of justice. I want to thank the subcommittee who worked so diligently on these submissions and commend them for their thoughtful and reasoned proposals.

As we look towards the second quarter of the year, some of the biggest legal changes for a decade are on the hori on – that is with the commencement of the Assisted DecisionMaking (Capacity) Act 201 the movement of the Family Courts Bill 2023 to the Second Stage through the Oireachtas the pending Collective edress legislation and we anticipate the introduction this year of the new Solicitors Accounts egulations.

As always, DSBA is there to assist our members and we will bring the latest information and guidance as matters unfold. Our Mental Health and Capacity Committee will hold a seminar on the new ules of Court when they are released and we will issue updates as they arise. The Council of DSBA have resolved to create a working group to review the proposals set out in the Family Courts Bill and update members as the Bill evolves. Our Litigation Committee is following carefully the progress of the implementation of the Collective edress directive into domestic legislation and will send out updates and where possible hold a seminar to update practitioners.

Our Practice Management Committee will prepare CPD on the introduction of the new Accounts egulations so that practitioners have ample information and guidance in good time prior to their commencement. All of these issues will be the subject of updates in this publication also.

In September, we will hold our Annual Conference in London. There are still some places available for the conference which

promises to be an exciting and interesting event giving us an opportunity to come together as colleagues to share knowledge, learn new skills and network. There will be a focus on Legal London’ and a chance to meet with London Irish lawyers. More details will be announced as the programme is finalised but I would encourage you to book your place as soon as possible. The closing date for bookings is 2 th April 2023.

During the late Spring and early Summer we intend to host some social events for members – more details will follow in the forthcoming President’s Message and on our social media channels. On 20th April we will hold a networking event for our In-House Members. Attendance is free but registration is essential – more details are available on our website. I hope very much to see you at one of these occasions.

All that remains is to thank you for your support in the first quarter of the year and to wish you all the very best for Easter.

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DSBA Law Book Awards

After an enforced absence due to the Covid Pandemic, the prestigious DSBA Law Book Awards returned for a Gala Dinner on the 17th February 2023 at the Westin Hotel where the winners were toasted and celebrated

Keith Walsh SC, Laura Cahillane, Attorney General Rossa Fanning, DSBA President Susan Martin, Paul McCutcheon & Paul English of Peter Fitzpatrick & Co Legal Costs Accountants Attorney General Rossa Fanning S.C. was the DSBA’s Guest of Honour on the night
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DSBA President Susan Martin addressing the Annual Book Awards Ceremony

The Annual DSBA Law Book Awards saw the cream of legal writing and legal publishing turn out in force. Guest of honour Attorney General Rossa Fanning lauded all the nominees for their magnificent contributions to the profession and he addressed the packed crowd of dinner guests on a number of legal matters.

The judging panel for the DSBA Law Book Awards are: John Geary, Stuart Gilhooly, Aine Hynes and Chair Keith Walsh.

Sponsors of the Law Book Awards were Peter Fitzpatrick & Co., Legal Costs Accountants, Law Society Finuas Skillnet and ByrneWallace Solicitors. Due to Covid, the winners of the awards were for publications published in the year 2020.

Winner of the DSBA Irish Law Book of the Year 2020 – sponsor Peter Fitzpatrick Legal Cost Accountants

The seminal book Byrne & McCutcheon on the Irish Legal System ( th edition, Bloomsbury Professional) by Professor Paul McCutcheon and Dr Laura Cahillane (of the niversity of Limerick School of Law) with aymond Byrne and Emma oche-Cagney was selected as the winner of the 2020 Irish Law Book of the Year.

This seventh edition provides comprehensive treatment of the key elements of the legal system in Ireland, including the roles and regulation of legal practitioners, the organisation of the courts and the judiciary, and an analysis of the main sources of Irish law and their application in practice. It is essential reading for law students in Ireland, and practitioners will find it of great value. The name Byrne McCutcheon’ is a household legal name for decades

and was a very popular winner on the night. Paul English of Peter Fitzpatrick Cost Accountants presented the award to the authors on the night.

Winner of the DSBA Practical Irish Law Book of the Year – sponsor ByrneWallace Solicitors

McGrath on Evidence (3rd Edition, ound Hall Thompson euters) won the coveted 2020 Practical Law Book of the Year. Written by Declan McGrath and Emily Egan McGrath, this book is in its third edition and is a musthave for the serious practitioner. McGrath on Evidence is unique in its breadth of coverage, scope and detail and its authors deserve much credit.

The book concentrates on Irish case law in relation to the Law of Evidence but also discusses relevant jurisprudence from other jurisdictions. It deals not only with the law of evidence as it applies to criminal trials, but also the rules applicable in civil trials. Sinead Kearney from ByrneWallace Solicitors presented the authors with their award.

Sinéad Kearney of ByrneWallace Solicitors, Declan McGrath, Attorney General Rossa Fanning, Susan Martin (President, DSBA 2023), Emily Egan McGrath & Keith Walsh SC


Book Awards
Photography: Owen O’Connor
Spring 2023 the Parchment 7

DSBA Book Awards

Lifetime Achievement Award/ Outstanding Contribution to the Legal Profession and/or Legal Scholarship

Each year, the Judging Panel recognise and honour an individual who has made an outstanding contribution to the legal profession and or legal scholarship. Previous recipients have included: Tom Courtney, Michael Peart and Professor Geoffrey Shannon. This year, the Judging Panel has to break from tradition and award joint recognition to two individuals – en Murphy, former Director General of the Law Society and Mary Keane, former Director General and Deputy Director General of the Law Society. Together this duo have represented the solicitors’ profession with distinction and honour. Both recently retired from their roles at Blackhall Place, so it was fitting that they were honoured by their peers in receiving the Dublin Solicitors Bar Association’s highest accolade.

Stuart Gilhooly SC, Ken Murphy, Attorney General Rossa Fanning, Mary Keane, Susan Martin (President, DSBA 2023), Attracta O’Regan, Deirdre Fox & Keith Walsh SC Lifetime achievement winners Mary Keane and Ken Murphy
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John McDaid – Making a Difference

There is a saying in family law that no good deed goes unpunished and if that is the case, then John McDaid will be doing his penance for a very long time following his departure as CEO of the Legal Aid Board. Keith Walsh SC caught up with the man who has made a lasting difference to the family justice system

After almost 30 years with the Board and over eight as CEO, John McDaid is moving on. It is arguable that he has as much influence this century over the family justice system as any other individual and he has been a catalyst for progressive and considered change within not just the Legal Aid Board but also the wider family justice system. He has sought to focus the Legal Aid Board, on delivering for those that need the Board’s services and doing so from within the budgetary and other constraints that the Board operates within.

As a member of the Family Justice Oversight Group and the Family Justice Strategy Implementation Group he has made a major contribution to the reform of the family courts system and been instrumental in bringing ADR and mediation in particular to Legal Aid Board clients. He is critical of the level of fees paid to private solicitors doing private family work in the District Court on a legally aided basis and in the 2021 Annual Report of the Legal Aid Board said the “contributions of those private solicitors who often work for fees that could in no way be described as generous, is very significant and the civil legal aid system depends on them” but he

It is almost impossible for the Legal Aid Board to enforce proper standards of service for the benefit of the end user if the lawyer is not paid a reasonable fee

says the Legal Aid Board cannot increase the fees without approval from the Minister for Justice and the Minister for Public Expenditure. Regarding an uplift to private practitioner fees, John says there needs to be meaningful engagement around fees for legal aid work for a number of reasons:

1.People should be properly recompensed for the work that they do;

2.It is almost impossible for the Legal Aid Board to enforce proper standards of service for the benefit of the end user if the lawyer is not paid a reasonable fee. Ideally you want more demand for a panel and to limit the number of solicitors in order to drive a quality agenda but you cannot do that without fees that are somewhat attractive to solicitors. At the moment the reality is that there are counties where there are hardly more than one or two private solicitors doing legally aided work in the District Family Court and this is not serving the Board’s client base well. Always someone who wanted to make a difference, John joined the Legal Aid Board in 1993 having qualified as a solicitor with Eugene F. Collins and following a stint working for a law firm in Australia. His first assignment was in Clondalkin Law Centre followed by promotion to solicitor in charge when he established the

12 the Parchment
Cross Examination
Spring 2023 the Parchment 13
Keith Walsh SC is a Dublin solicitor practising primarily in the area of family law and family disputes. He is a quali ed mediator and collaborative lawyer. He is a former Editor of the Parchment and former President of the DSBA

Law Centre in Longford and where he spent three years before setting up the Law Centre in Navan, County Meath in 1997. Although too modest to admit it, at this point he was the coming man in the Legal Aid Board as he had successfully led two new Law Centres and was one of the most effective managing solicitors in the Legal Aid Board. He moved on to act as Managing Solicitor in the busy Refugee Legal Services in 2001 and in 2005 he moved from legal work to management when he was appointed Professional Liaison Officer. In 2012 he was appointed Head of Operations in the Legal Aid Board before being made Chief Executive Officer in 2014.

Moving into Management

“I was the first solicitor on the Management Team, though now about half of the Team have experience as practising solicitors. The biggest difference between management and practice is that when you are a solicitor in the Legal Aid Board everything is coming at you....client after client after client, the demand and the waiting lists, whereas when you are in a senior management role it does not come at you like that, you often have to reflect and think well how can I make a difference, how do I listen to those I need

to hear, what do I need to do to make things happen the way that I believe they should happen. So in other words, stuff is not always hitting you, you have to figure out what are the right things to do, what do I need to do here because you could do nothing and things would just wither but they won’t wither immediately. My experience was that this required a significant change of mindset. As a solicitor you are being responsive all the time to what is coming at you demand-wise, in a management role it is a different form of responsiveness and it is not relentless but you do have to go and figure it out and then go and do it, you have to be more proactive in terms of what you want to do.

“When you are CEO of an organisation you have to figure out do I have a vision and who do I need to hear from to inform that vision and then how do I sell that or share that vision, how do I get people to buy into it and once I’ve done that then how do I implement it. You have to serve the Board, you are working with the Department [of Justice] and leading a management team, you are the main leadership figure for the staff in the organisation and the public face of the organisation in terms of media and stakeholder organisations and huge numbers

of skills and relationships. It is an enormous privilege to have that opportunity.” The Legal Aid Board employs close to 150 solicitors, approximately 40 family mediators and over 530 staff in total.

On Client Focus

“I wanted to get the organisation to have the client at the focus of every decision the organisation makes and I tried to sell that message, everything we all do in the organisation has to be about serving the person who is in need of service from the organisation as that is the only reason anyone in the Legal Aid Board is in their jobs. For me this message was always a critical one. My experience was that when we did it well we made better decisions.

“The second ‘tenet’ that I sought to keep to the forefront was that staff are an organisation’s greatest resource. This is a tenet that is easy to say but much more challenging to give proper effect to. We have a great workforce in the Legal Aid Board who make a very significant difference to people’s lives on a daily basis. If I had my time again I would do more to be overt in my support for what people do and the difference that they make.

“Resources has always been a challenge, though I recognise that within the public sector there will always be competition for scarce resources. One of the most frustrating experiences I had was that it took close to five years before we could offer close to the same starting salary as the Chief State Solicitor’s Office and other public bodies employing solicitors. We were compelled to offer potentially €12,600.00 less than those other bodies. The consequence was that recruitment in Dublin became exceptionally challenging –well over and above the normal recruitment challenges experienced in the solicitor market in the last few years. Indeed solicitor recruitment in Dublin remains a very significant issue.”

On the Family Justice System

“My experience of the family justice system was that it was not particularly end user focused and it lacked what I might describe as ‘system leadership’. I would have advocated for a reform process. In fairness I believe the Department of Justice has taken this on and the recent publication of a Family Courts Bill along, perhaps even more importantly, with the publication in November last of a Family Justice Strategy, give a real platform for much needed reform and oversight. To give just one example that prompts demand for reform, at the moment I hear of childcare cases that can take four years to complete – I fail to see how that in any way meets the needs of the children or the parents involved, it just seems to me to be a failure on the part of the system to act in

14 the Parchment
Everything we do should be about the end user, if I had my time again I would practise law very differently from when I was a solicitor and focus on the outcome rather than the process

a manner that is properly responsive to the needs of the people concerned on issues that are so fundamental to people. This isn’t to be critical of any one organisation but there must be a form of responsibility within the broad family justice system for addressing issues like this.

“There is a significant shortage of data and oversight. Another example relates to the ‘voice of the child’ reports, a constitutional requirement in place for about ten years now – I do not think anyone has oversight of this at the moment, from what I can gather in some cases they are available, in some cases they take 12 months, in some cases they take six months and in some cases they are not available at all. The piece that I think is missing is that body that has the helicopter view of all these issues and has also the responsibility for pulling the actors together to come up with the solutions because they do not rest with one body or agency, they rest with a multiplicity of bodies or organisations. The Family Justice Strategy Implementation Group, whose job it is to oversee the implementation of the Family Justice Strategy, offers a pathway towards this oversight though I recognise that it will need to be careful to ensure that all stakeholders are brought on board during the reform process.”

Focus on the Outcome Rather than the Process

“Everything we do should be about the end user, if I had my time again I would practise law very differently from when I was a solicitor and focus on the outcome rather than the process. The process drags people through contested court proceedings far more often than we need to do. In the Legal Aid Board we have co-located eight law centres with family mediation centres to give people better opportunity to resolve their differences through a facilitated negotiation process rather than an adversarial court process.

“Mediation is also about educating people about their choices but there is still a trust issue between mediators and lawyers and too often a lack of mutual understanding about each of their roles. We have made some progress in the Legal Aid Board on this though there is still a distance to travel. I welcome the emphasis on ADR in the Family Courts Bill and the Family Justice Strategy.” John says mediation is not suitable for every case, particularly those where there are concerns around domestic violence or significant power imbalances, but the reality is that the majority of cases settle on the steps of the court, and getting those cases resolved earlier and in a less damaging way is where the challenge lies.

“The need for better education around people’s legal rights and the existence/ availability of civil legal aid will I have no doubt feature largely in the Review of Civil Legal Aid. One very positive action we in the Legal Aid Board took in the last 12 months was to establish a Traveller Legal Aid Service and what we are trying to do is to go out to that community and improve a. their knowledge of their legal rights, and b. their ability to access legal aid when they need it. I have no doubt that the Board will in time replicate this approach with other communities. Needless to say if you promote legal aid in a way that increases demand, it is very important that the resources are in place to meet that extra demand.”


“I don’t have too many disappointments – there is very little that I would not do somewhat differently if I had my time again. Experience teaches us so much. I remember being advised at the start of my CEO tenure that I should consider how much communication was needed and then multiply it by ten. I don’t think I took that advice on board sufficiently but any disappointment is tempered by the experience being a lesson for the future.”


John plays guitar (very averagely he claims) in various sessions around Phibsboro and its hinterland – folk, country, blues and more traditional tunes –jigs and reels. Neil Young is a musical hero of his. He tries to avoid singing.

Mountain and hill walking is an interest he shares with family members – his last holiday was walking the Tour de Mont Blanc.

He has a long-standing interest in soccer including having played for a good number of years with Blackhall Place-based teams Law United and Chancery over 35’s (both now defunct). He coached underage GAA with the Na Fianna GAA club when his children were younger. He is a season ticket holder for Bohemians FC and a life-long Manchester United fan.


“In an organisation no achievement is personal and the achievements are those of the Board, the Management Team and the staff. Looking back I am happy with the colocation of family mediation centres with law centres, that has been a good thing, we have just established a private mediators panel and we have just graduated nine mediators from our first mediator training programme. All of this augurs well and sits well with the Family Justice Strategy. We have worked hard to be responsive to the very varying demand for services in the area of international protection, and I believe we have met this challenge. We have launched and managed the legal component of the Abhaile Scheme which has kept many homeowners who have experienced mortgage payment problems in their homes. I am very hopeful that we are ready for the imminent commencement of the Assisted Decision-Making legislation which will considerably assist in protecting the rights of a very vulnerable cohort of society.”

What Next for John McDaid ?

“Grainne (my wife) and I are going to wander round Spain for three months and then I’m going to look for a job.”

Cross Examination
Photography: Bryan Meade John McDaid at a glance
Spring 2023 the Parchment 15

What others say about John McDaid

Walls, former chair of the Legal Aid Board

“I was part of the interview panel when John went for the position of CEO. While there were lots of excellent candidates his passion for legal aid and the clients the Board serve stood out. He is steeped in legal aid and how best to serve the legal aid client and the legal aid community. His leadership style is quiet but very effective. He is a good listener. He brings people with him. John confronts issues head on and does not shy away from making tough choices. This ability to make hard decisions was very necessary in his role in which he was constantly faced with the challenge of trying to provide the best service to clients with limited resources.”

Eilis Barry, CEO of FLAC

“John’s commitment to access to justice is undeniable. He was a very active member of the Chief Justice Committee and clearly wanted to make the recent legal aid conference a real contribution to the civil legal aid review.

He has been at the forefront of developing important new initiatives - the co-location of services and the recent introduction of a service for Travellers; the consultative committee with stakeholders in the Legal Aid Board is a vital initiative he spearheaded.

He faced impossible challenges with the resources afforded to the Legal Aid Board and the salary scales offered to solicitors compared to salaries in other state services. He is fiercely loyal and protective of staff who work under incredible pressure and demands.

He pointed out to the Civil Legal Aid Review Group, and I am paraphrasing, that any lovely reform ideas are simply unrealisable if you cannot get the staff.

He is unfailingly pleasant and really helpful, he is always very happy to share ideas on matters like training and supports for staff. I really wish him the best in the next stage in his career.”

Nuala Jackson SC, current Chair of the Legal Aid Board

“John is a delight to work with because he is knowledgeable, practical and focused. He is firmly committed to access to justice and

this has informed his very successful sojourn as CEO of LAB where he called upon his vast reservoir of knowledge and experience. He is calm, decisive and committed to achieving the objectives of the Legal Aid Board. As an experienced legal practitioner, his practical knowledge of the challenges litigation presents is brought with him into decision-making.

John is committed to ADR and to less acrimonious means of dispute resolution. The mediation service within the LAB has expanded and developed hugely under his watch. He is a good mentor for new colleagues. Working with John has been a delight. He is very strategic and focused.

He robustly engaged with the challenges of ensuring an adequate supply of service providers, both employed solicitors and via private practitioner panels. This has been an ongoing challenge and remains such but much of the progress achieved is attributable to his persistence and resilience. He has developed outreach within the LAB especially through the external consultative panel. Lastly he plays a mean guitar!”

Peter Mullan, former partner with Garrett Sheehan and Partners, formerly with the Courts Service and now with An Bord Pleanála

“John was always was generous with his time and always sought to look to improve the service to all service users in the Family Justice Courts. He was the LAB nominee on the Family Justice Oversight Group (FJOG). The FJOG was established by the Minister for Justice in September 2020 to develop a highlevel Family Justice Strategy. The work of the FJOG resulted in the development of a Family Justice Strategy which was published in November 2022. The FJOG included Judges from the District, Circuit and High Courts, Department of Justice and Courts Service. It was Chaired by Oonagh Buckley, Deputy Secretary of the Department of Justice.

John was founder, co-sponsor and joint chair of the Project Board of the Limerick Family Court Pilot. The Project piloted a Family Court/Resolution Centre working closely with the Judiciary, family law practitioners and local NGO stakeholders.”

Joan Crawford, colleague in

the Legal Aid Board and incoming CEO

“I have worked with John for nearly 30 years, he is a very straightforward, lovely person who is very conscious of treating everybody the same and with the same respect and tries to include everyone in the conversation. He is very fair and inclusive, there is no favouritism. He likes the simple things in life and is not materialistic at all and his focus has always been on the client. This was the same when he worked in practice as a solicitor in the Board.

He strongly believes that our job is to provide a service to clients and he is very dedicated to this concept. He is very highly regarded within government. What you see is what you get. A solid, good guy, a family man, full of common sense. He is not retiring but will be back after his walking holiday in Spain and I want to wish him well.”

“We worked together when I was a board member and as chair, John was charismatic, popular with staff, very good at defending them and most importantly he viewed everything in the Legal Aid Board through the end user-oriented prism. He put the clients first. During my tenure as chair John initiated a research function on legal aid within the Legal Aid Board and we worked on starting a number of outreach projects of which the Traveller Outreach Project is probably the most recognised.”

Former Minister for Justice Frances Fitzgerald MEP

“I am very grateful to John for the work he has done for access to justice and within the Legal Aid Board. When working with John he had a great commitment to the Board and their clients. At all times in my dealings with him what came through was his sense of integrity and his diligence and I want to thank him for his work and to wish him well on the next stage of his career.”

Cross Examination
Philip O’Leary, former Chair of the Legal Aid Board
16 the Parchment

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The Future of Civil Legal Aid

Keith Walsh SC, who provided an initial draft and contributed to the DSBA submissions to the Review Group on Civil Legal Aid, gives The Parchment an update

In June 2022, the Minister for Justice Helen McEntee established the Civil Legal Aid Review Group to review the current operation of the Civil Legal Aid Scheme and make recommendations for its future. This is the first review of civil legal aid since the Pringle Report in December 1977.

The DSBA made substantial submissions to the Pringle Report in the 1970s and former DSBA President Brian Gallagher was then a member of the committee responsible for the Pringle Report. This time the Civil Legal Aid Review is chaired by the Chief Justice Donal O’Donnell and former DSBA President Aine Hynes is a member. Other members include:

FLAC CEO Eilis Barry, barrister Joseph O’Sullivan BL and CEO of the Legal Aid Board John McDaid who will be replaced by his successor Joan Crawford.

In January 2023 the DSBA made comprehensive submissions to the Civil Legal Aid Review Group. The submissions are available to read in their entirety on the DSBA website. In her introduction to the submissions, DSBA President Susan Martin quoted E Megarry – ustice is o en to a i e the it ote –before going on to state:

“Legal aid is an essential element of access to justice, which is, itself, a universal human right according to the IBA. Principle 1 of the IBA’s Civil, Administrative and Family Justice Systems states that: Legal aid service delivery generates significant socia and econo ic benefits n the budget formulation process governments should estimate the social and econo ic costs and benefits o ega aid service de ivery, inc uding by ta ing into account the socia and econo ic costs o ai ure to de iver services

Historically legal aid in Ireland has suffered from two major defects:

1. Lack of resources;

2. Lack of operational independence of the Legal Aid Board to set the level of fees payable for its private practitioner scheme. Both the Minister for Justice and the Minister for Public Expenditure/Finance must approve the terms and conditions of any private practitioners’ panel. In addition, the solicitors employed by the Legal Aid Board have historically been paid less favourably than comparably

experienced solicitors employed in the offices of the Director of Public Prosecution or the Chief State Solicitor’s Office.

Unless these two fundamental defects are remedied any reform of the Civil Legal Aid system will run into the sand. Our commentary on the legal aid scheme should not be taken as in any way critical of the staff of the Legal Aid Board who do excellent work under the most trying of conditions. The DSBA wishes to confirm our solidarity with them. Recognition must also be given to the ongoing work and leadership provided in this area by FLAC and other NGOs.

It is clear that the current system of Civil Legal Aid is broken and is not adequately addressing the unmet legal needs of many of the less well-off and more vulnerable of our community and action must be taken immediately to remedy this.

The eview Group identified a preliminary set of issues on which they sought submissions and the DSBA submission responded to these issues and also compiled a number of key recommendations which are set out below.

DSBA Recommendations for Reform of Civil Legal Aid in Ireland

1.Sufficient independent resourcing of civil legal aid. Legal aid in Ireland has suffered from two major defects:

i.Lack of resources.

ii.Lack of operational independence of the Legal Aid Board to set the level of fees payable for its private practitioner scheme. Both the Minister for Justice and the Minister for Finance must approve the terms and conditions of any private practitioners panel. In addition the solicitors employed by the Legal Aid Board have historically been paid less than comparably experienced solicitors employed in the offices of the Director of Public Prosecution or the Chief State Solicitor’s Office.

Unless these two fundamental defects are remedied any reform of the Civil Legal Aid system will run into the sand.

2.Additional areas of civil law to be covered immediately by the Civil Legal Aid Scheme are:

18 the Parchment

Employment and Equality Law and it is submitted that access to justice is not achievable for many people without legal aid in relation to employment and equality cases.

3.It is submitted that a flexible, concise and transparent system of prioritisation be adopted by the Civil Legal Aid Review Group. The factors could include the following:

•Loss of liberty;

•Risk to bodily integrity, health and psychological welfare of the applicant or dependent children – childcare cases, domestic violence cases, child abduction;

•Right to a good name, right to defend allegations of domestic violence;

•Statutory time limits close to expiry;

•Imminent full hearing date;

•Imminent interim hearing date;

•Irrevocable economic loss.

4.Legal aid should also be extended into the following areas due to their importance to the person involved and the complexity of the law as well as the very negative economic and other impact of a failure to vindicate their rights:

•Social welfare appeals; esidential Tenancy Board (tenants)

Inquests – If the cause of death is unnatural, or other issues surrounding the death are unknown, the Coroner carries out an inquest. Currently limited legal representation is permitted in limited situations. If an inquest is required, it is submitted that it is in the interest of the family members and society as a whole to identify the cause of death and legal aid should be available.

5. In the short term, cases pursuant to the Assisted Decision-Making (Capacity) Act 201 should be prioritised for support, advice and representation as the Act is due to be commenced shortly

.Proceedings before quasi- judicial settings should not continue to be excluded from legal aid.

7. The current eligibility thresholds should be determined on a parity with the minimum living wage as the net “base” figure which is currently set at €18,000.00 and which would be increased to the 2023 figure of 2 , . 0 and would rise with the increases in the minimum living wage which is set at 0 of the median wage and published annually by the government.

.Current allowances for financial eligibility should be retained and weighting should be provided for Dublin given the disparity in the cost of living between Dublin and the rest of the country. Allowances must be made for costs of necessary travel to work and payment of insurance premia such as for car and house.

9.The following cases should be granted legal aid without a financial eligibility test as they are so fundamental to the rights of an individual:

a.Applications pursuant to the Domestic Violence Act 2018;

b.Applications under the Mental Health Act, 2001 for legal representation for review of detention;

c.The Legal Aid - Custody Issues Scheme (Attorney General’s Scheme)

d.Applications under the Assisted DecisionMaking (Capacity) Act 201 .

10. There should be no merits test applied to the above cases granted legal aid without a financial eligibility test as they are fundamental rights.


The following criteria are relevant to eligibility for legal aid the interests of justice (which in turn will be affected by the importance of the matter to the individual – considered objectively) and the importance of the matter to others in society, particularly disadvantaged groups, as well as the complexity of the matter and the availability of satisfactory alternative methods of achieving justice, including alternative funding and the likelihood of success.

Members of the Chief Justice’s Review of Civil Legal Aid L-R John Lunney, Joseph O’Sullivan BL, Chief Justice O’Donnell, Eilis Barry, CEO FLAC, Retired Supreme Court Justice John MacMenamin and John McDaid Missing: Áine Hynes SC

the Parchment 19 DSBA News Spring 2023
Keith Walsh SC is a Dublin solicitor practising primarily in the area of family law and family disputes. He is a quali ed mediator and collaborative lawyer. He is a former Editor of the Parchment and former President of the DSBA Photo: Photocall Ireland

12.All financial contributions should be removed for applicants for legal aid. It is an unnecessary barrier faced by those accessing justice.

13.The current delivery of civil legal aid is hampered by the inadequacy of the financial remuneration available for solicitors employed by the Legal Aid Board and the level of fee payable to the panel of private practitioner solicitors neither of which are remotely related to the market rate for solicitors. The Legal Aid Board should be permitted to set the rate of pay for its own solicitors and also to set the rate of payment for private practitioners. Currently it cannot do so.

14.In addition to increased remuneration, the private practitioner panel should be restructured to reflect the increasing complexity of family law cases in the District Court and the new reality of multiple court appearances in all applications. The Panel should be a closed one restricted by an open interview process to a certain number of specialist solicitors who will increase their skill levels and benefit those seeking legal aid as is currently used in the Mental Health Legal Aid Scheme 2005. A set of proposals for such a sche e is set out in the sub ission

15. Key barriers to accessing the legal aid service are

i.Inadequate resourcing of the Legal Aid Board causing long delays;

ii.Lack of availability of solicitors on the Private Practitioners Panel due to uneconomic rates of payment;

iii.Financial contribution currently required;

iv. Financial eligibility criteria restricts many applicants;

v. Merits test if applied inflexibly can restrict applicants;

vi. Lack of public knowledge of individual rights and the legal system and the legal aid system.

16.The administration and delivery of the service can be made to work better for the individual users, NGOs and communities by:

i.The provision of resources to the Legal Aid

Board and the restructuring and resourcing of the private practitioner panel;

ii.Removal of the barriers set out above;

iii.The inclusion of an ongoing public information campaign by the Legal Aid Board;

iv. The repurposing of the Legal Aid Board as a coordinating body and resource for all those NGOs and Community Law Centres to provide better access to information about rights and legal aid and to provide legal advice and information;

v. There is a case to be made that the Community Law Centre network would be expanded to provide legal advice on a greater scale than currently.

17. An individual’s awareness and understanding about justiciable problems or legal disputes could be raised by:

i.Ongoing public campaigns;

ii.The creation of a resourced role for the Legal Aid Board in organising NGOs, government departments, the Gardai, the Courts Service and others in the justice system to promote information on an ongoing basis regarding individual rights, access to justice and access to the legal aid system.

18.The aims of a civil legal aid scheme should cover:

i.a service delivery aim, as the Legal Aid Board currently does;

ii.a strategic aim of raising awareness of legal rights, overcoming psychological/cultural barriers to access legal profession and to include longer term aims such as research, reform and education; and

iii.A basic aim or principle of being operationally independent of government but accountable and a further aim to provide information to government, the Oireachtas and the public to assist in ensuring efficiency of the justice system as a whole.

19.The values underpinning a civil legal aid scheme should include: equity, equality, dignity and respect, effectiveness, confidentiality, accountability, transparency and integrity, quality, evaluation and collaboration.

20. The civil legal aid service can best be targeted or prioritised for recipients in the future by:

i. increasing funding for the Legal Aid Board;

ii. increasing operational independence so that the Legal Aid Board can set its own rates of remuneration for its solicitor employees and members of its Private Practitioner panel;

iii. increasing public awareness and by developing more strategic aims.

21.There is an important role for mediation and/or other alternative dispute resolution processes as part of a civil legal aid scheme but not as an alternative to it and those availing of mediation should at the same time be able to avail of legal advice so they are aware of their legal rights while attending mediation.

It is hoped that the Civil Legal Aid Review Group will next invite interested stakeholders to discuss their submissions and the DSBA wishes to encourage reform and resourcing of this vital aspect of our judicial system.

20 the Parchment
The Legal Aid Board should be permitted to set the rate of pay for its own solicitors and also to set the rate of payment for private practitioners
Keith Walsh SC addresses the Conference on Civil Legal Aid Review in February 2023 +353412133000 Locating missing beneficiaries & next-of-kin Join our FREE CPD webinars Family Tree Checks X Tracing Administrators S.49 Applications X Probate Property Services Missing Wills INTERNATIONAL PROBATE GENEALOGISTS YO UR LEG AL COST S PAR TNE R Mc CannSa dl ier, LegalCos t s A ccoun t ant s ha s ov er 10 0 years ofcombi n ed l ega l co s ts e xperie n ce. We ar e a r esult s drive n t eam of l ega l co sts pr act iti one r s suppo rt ed by s pec ial is ed sta ff. T 01 84 07 069 E INFO@McCAN NS ADLIER. IE W McCANN SA DL I ER. IE SWORD S: 11 NOR TH ST REE T BUSINE SS PAR K, SWORD S, D UBLI N, K67 XH29. DX 9101 0 BLACK ROC K: 12 PR IOR Y O FFICE PARK, STILLO RG AN ROAD, BLACK R OCK D UBLIN, A 9 4 N2V 3. DX 7003 d y s AN McCA P CK m 67 XH29. UBLI Legal Costs Management, A Legal Practitioner’s Guide is published and updated annually by our firm. If you would like a courtesy copy of this guide, apply by email to Please visit our website at for further details

New Regime for Enduring Powers of Attorney

With the Assisted Decision-Making (Capacity) Act 201 due to be commenced on the 2 th April 2023, Emma Slattery BL and Aisling Mulligan BL look at the new process for creating an Enduring Power of Attorney and outline some important practical points for lawyers to note with the new regime

It is now standard practice for solicitors to advise clients on the Powers of Attorney Act 199 ( the 199 Act’). Prior to the commencement of the 199 Act, there were limited statutory mechanisms for the management of people’s affairs. The lack of regulation left people vulnerable to the risk of abuse. The 199 Act therefore represented a fundamental shift in the legislature recognising the need to provide care and protection to vulnerable people and their assets. The Assisted DecisionMaking (Capacity) Act 201 (as amended) ( the 201 Act’), which is to be commenced on the 2 th April 2023, builds the next iteration of the shift in mindset for the legislature. This shift, it is hoped, will bring about a change in current estate planning, which will also become standard practice. The donor is at the centre of decision-making and in control of registering their own Enduring Power of Attorney ( EPA’). This article looks at the new process for creating an EPA and outlines some important practical points for lawyers to note with the new regime.

An Enduring Power of Attorney

In language which almost mirrors section (1) of the 199 Act, under the 201 Act a person can confer upon

another person a general authority to act on their (the donor’s) behalf in relation to a donor’s personal welfare and or property and affairs. The donor can also give a specified authority to an attorney in relation to the donor’s personal welfare and or property and affairs.

The New Process for EPAs

Step 1 – Creating an EPA

In order for an EPA under the 201 Act to be valid, both the attorney and the donor must be over 1 and the terms of the agreement must be in writing. The agreement must be in compliance with the regulations which will be made by the Minister and specifications which will be made by the Director. The EPA should contain a statement from the donor, a legal practitioner, a healthcare professional, and a statement from the attorney.

In particular, the donor must declare that they understand the implications of creating the power, that they may vary or revoke the EPA while they have capacity, and that they intend the power to be effective when they lack capacity in relation to the matters provided for in the EPA. The legal practitioner

22 the Parchment

must be satisfied that the donor understands the implications of making the EPA, that the donor is not under any undue influence or coercion and that the donor may revoke or vary the EPA at any time prior to their loss of capacity. The attorney must be satisfied that they understand and have read the EPA, as well as the implications of becoming an attorney. The attorney must state that they will act in accordance with the guiding principles (see Section of the 201 Act) and within their functions as the attorney. They must also state that they will notify the Director of the Decision Support Service ( the DSS’) when the donor lacks capacity. Finally, a healthcare professional or medical practitioner must confirm that they are satisfied the donor has capacity to understand the implications of creating the EPA.

Capacity to create an EPA

While the assessment of capacity to create an EPA has been carried out by healthcare professionals on the basis of the functional approach since the it atric decision it atric nor v Anor [200 ] IEHC 104), there is now a statutory obligation under section 3(1) to use that test. The 201 Act provides that capacity is to be

assessed functionally, based on the donor’s ability to understand, at the time a decision is to be made, the nature and consequences of that decision in the context of the available choices.

Section 3(2) of the 201 Act provides that the donor will not lack capacity unless they are unable to understand, retain, use or weigh the relevant information and communicate their decision. This is a clear move away from the provisions of the 199 Act which defines “mental incapacity” as “incapacity by reason of a mental condition to manage his or her own property and affairs”.

hat a es a va id

The instrument creating the power must comply with the proofs set out in the 201 Act. These include

1.The name, date of birth and contact details of the donor.

2.The signature of the donor (or someone on their behalf in accordance with s. 0(3)) and the date they signed the power.

3.The name, date of birth and contact details of the attorney(s).

4.The signature of the attorney(s) and the date they signed the EPA.

the Parchment 23 Enduring Powers of Attorney Spring 2023
Section 3(2) of the 201 Act provides that the donor will not lack capacity unless they are unable to understand, retain, use or weigh the relevant information and communicate their decision
Emma Slattery BL and Aisling Mulligan BL are practising barristers with a specialty in Enduring Powers of Attorney and Capacity issues

. The signatures of two witnesses who are at least 1 , not immediate family members of the donor or the attorney and neither of whom is an employee or agent of the attorney.

In an EPA, a donor must not confer any authority to refuse life-sustaining treatment or deal with anything already the subject of an advanced healthcare directive.

Once the EPA has been executed, the donor must give notice to their spouse (this includes cohabitant and civil partners, as applicable), their adult children and any other person with whom they have a decision-making agreement (a Decision-Making Agreement should be taken to mean any agreement with a decision-making assistant, co-decision maker, decision-making representative, designated healthcare representative, or other attorney, either under the 201 or 199 Act). The donor must specify a minimum of two people to whom notice is to be given, if the number of above-named people to whom notice must be give is fewer than three.

In order for an attorney with authority in relation to property and affairs under an EPA to dispose of the property of the donor by way of gift, specific

provision to that effect must be made in the EPA. However, such authority to give gifts must be limited to gifts given on customary occasions (e.g. birthdays and Christmas) to those whom the donor might be expected to make a gift, and gifts to charities to which the donor made or might be expected to make gifts. The value of the gift must be reasonable having regard to the circumstances and the donor’s financial situation.

Finally, an EPA will not be valid if an attorney is ineligible to be an attorney due to their history of offences committed against the donor or their child, which includes protective orders for domestic violence. Service providers of care and mental health services where the donor resides are excluded from acting as attorneys. Anyone convicted of an offence under the 201 Act is prohibited from acting as an attorney. A person will also be excluded as an attorney in relation to the donor’s property and affairs where they have been declared bankrupt, insolvent, prosecuted pursuant to the Companies Acts, or convicted of an offence of fraud or dishonesty.

Similar to the provisions of section 14(1) of the 199 Act, attorneys may be appointed jointly, jointly and

24 the Parchment

severally, or jointly in respect of some matters and severally in respect of other matters. The death of one joint attorney shall not prejudice the remaining attorney s authority unless the EPA provides to the contrary. These can be used as safeguarding provisions to prevent abuse of the power, and that the right expertise is directed towards the most appropriate area.

Step 2 – Registration whilst the donor has capacity

One of the most significant changes is that registration’ under the 201 Act not does have the same meaning as registration under the 199 Act.

nder the 199 Act, registration occurs pursuant to section 10 when the donor loses capacity. However, under the 201 Act registration (as opposed to notification, discussed later on) occurs while the donor still has capacity.

The donor, or their attorney with the donor’s written consent, must within three months of execution of an EPA or receiving all necessary documents, whichever is later, make an application to the Director of the DSS to register the EPA. At the same time as applying to register the EPA, notice of the EPA shall be given to the donor’s spouse, their adult children and any other person with whom the donor has a decision-making agreement and any other person specified by the donor in the EPA. The DSS will need the original document creating the EPA, copies of the notice made to third parties and details of any other decision-making supports entered into by the donor. The DSS will charge a fee for registration.

On receipt of an application for the registration of an EPA, including any objections received, the Director must be satisfied that the criteria have been complied with. The Director has discretion with regard to immaterial departures from the criteria. If the Director is not satisfied the criteria have been met, the Director will inform the attorney and the donor and given them an opportunity to respond. The Director may refuse to register an EPA where the criteria are not met. A donor whose application for registration is refused may appeal to the Circuit Court within 21 days.

Step 3 – Notification to the Director that the donor lacks capacity

nder the 199 Act, the EPA must be registered when the donor lacks capacity. However, under the 201 Act the EPA will already have been registered, but the donor’s lack of capacity must now be notified’ to the Director. Where an attorney has reason to believe that a donor lacks capacity in relation to one or more relevant decisions the subject of an EPA, the attorney shall notify the Director. The notification must include a statement from two registered medical practitioners or prescribed healthcare professionals. They must provide their opinion that the donor lacks capacity in relation to one or more relevant decisions the subject of the EPA.

otice must also be served in the specified form by the attorney on the donor, the donor’s spouse, the donor’s adult children, and any other person with whom a decision-making agreement has been entered, who may then object to the notification.

Step 4 – Acceptance of the Notification by the Director

On receipt of a notification that a donor lacks capacity in relation to any matter specified in an EPA, including any objections received, the Director must be satisfied that the criteria have been complied with. If the Director is not satisfied the criteria have been met the Director will inform the attorney and give them an opportunity to respond. The Director may refuse to register an EPA where the criteria are not met. An attorney whose application for registration is refused may appeal to the Circuit Court within 21 days.

In Summary

Thus, an EPA does not come into force until

A.The EPA has been registered with the Director

B.The donor lacks capacity in relation to one or more of the decisions dealt with in the EPA

C.The Director has been notified that the donor lacks capacity and

D. The Director accepts the notification that the donor lacks capacity.

The Effect of the 2015 Act on EPAs Made under the 1996 Act

Many practitioners will have a number of Enduring Powers of Attorney on file for clients who have not yet lost capacity. Currently, only EPAs made after commencement will be registered with the DSS. This is subject to change in due course (see section 1(1A) of the 201 Act). An important provision of the 201 Act, that will apply to attorneys both under 201 Act and 199 Act EPAs, is the complaints process. The DSS will have the power to investigate and determine all complaints made against attorneys. Complaints may be made to the Director where there is a concern that an attorney under a 199 EPA is acting or is proposing to act outside the scope of the EPA, is unable to perform their duties, or has used fraud, coercion, or undue pressure to induce the donor to enter into the EPA.


Greater supervision of EPAs is to be welcomed to address concerns in some quarters around issues of accelerated inheritance’. The rationale for the registration of the EPA whilst the donor still has capacity is also sensible. Clarifications are required and challenges to capacity arise, which can be dealt with while the donor remains capacitous. These authors are optimistic that such provisions, in addition to the change to the definition of capacity, will better serve those endeavoring to think-ahead and provide for their future.

As with any new process, there will be a period of adaption. Much remains unknown, which will soon be revealed in the form of regulations and specifications. The significant enhancements to the process in the form of the supervisory role of the DSS, who oversee the registration, notification, obejctions, complaints, and reporting requirements, will serve to provide stronger safeguards for donors’ personal welfare and property. This role will ensure that any gaps in the provision of services by attorneys can be properly addressed for the benefit of the donor.

the Parchment 25 Enduring Powers of Attorney Spring 2023
nder the 199 Act, registration occurs pursuant to section 10 when the donor loses capacity. However, under the 201 Act registration occurs while the donor still has capacity

Providing for Vulnerable Beneficiaries –Tax Aspects

Brian Broderick looks at some of the tax issues that frequently arise where provision is made for vulnerable beneficiaries, focusing in particular on limited interests such as rights of residence and life interests and Discretionary Trusts

Although there are a number of different ways that vulnerable beneficiaries can be provided for, in general we tend to see the use of discretionary trusts and limited interests such as a right of residence or life interest.

The methods used to provide for vulnerable beneficiaries can be relatively limited but the tax issues associated with such provision can be extensive, and very dependent on the facts and circumstances.

The below does not look at the basic principles of income tax, Capital Gains Tax (CGT), Capital Acquisitions Tax (CAT) or Discretionary Trust Tax (DTT) in detail as most practitioners will be familiar with the basic principles of:

CAT at 33 on gifts and inheritances once the relevant group threshold has been exceeded with aggregation looking back to 5 December 1991.

DTT at in the first year of charge (reducing to 3 if all assets are distributed within five years of the date the tax is triggered) with a 1 levy continuing while assets remain in the trust. Income tax with individuals subject to income tax, SC and P SI at various rates. Trusts are subject to income tax at 20 with discretionary trusts subject to an additional 20 surcharge if income is not used to meet income expenses of the trust or distributed to beneficiaries in such a way that it is taxable as income in the hands of beneficiaries within 18 months of the end of the year in which the income arose. It is important to note that exemptions from DTT do not mean that there is

no income tax surcharge on income as while there are some exclusions for charitable purpose trusts and pensions there is no exemption if beneficiaries are incapacitated. It applies if the settlor is dead or alive, or if there are principal objects or not.

CGT with individuals and trusts generally subject to tax at 33 on gains on the disposal of assets, to include settling assets into a trust (other than on death) and appointments from trusts.

•Stamp duty applying on transfers into a trust (other than on death) with no stamp duty on appointments from discretionary trusts.

Discretionary Trusts

It is important to note that the definition of a discretionary trust for tax purposes is broader than simply a trust where trustees have discretion over the appointment of assets and this broader definition applies from both a CAT perspective and an income tax perspective.

CAT definition of discretionary trust

“any trust whereby, or by virtue or in consequence of hich

a ro erty is he d on trust to accu u ate the inco e or art o the inco e o the ro erty, or

b ro erty other than ro erty to hich or the ti e being a erson is beneficia y entit ed or an interest in ossession is he d on trust to a y, or ith a o er to a y, the inco e or ca ita or art o the inco e or ca ita o the ro erty or the benefit o any erson or ersons or o any one or ore o a nu ber or o a c ass o ersons hether at the discretion o trustees or any other erson and

26 the Parchment

not ithstanding that there ay be a o er to accu u ate a or any art o the inco e

Income tax definition of discretionary trust

A discretionary trust is not specifically defined in the income tax legislation, but the definition is implied in that the surcharge applies to trust income: hich is to be accu u ated or hich is ayab e at the discretion o the trustees or any other erson, hether or not the trustees have o er to accu u ate the inco e

There are similarities between the two definitions but each needs to be considered in isolation when looking at the income tax and CAT (including DTT) implications of a trust.

The DTT Charge

As noted above most advisers will be familiar with the and 1 DTT levies. In general, and at a very high level, the following would need to apply for a discretionary trust to be subject to DTT:

•The settlor must be dead.

All “principal object” beneficiaries (most commonly children but also includes minor children of deceased children and spouses) must be 21 or older. •The trust must not provide exclusively for incapacitated beneficiaries or charities.

There are some other exclusions for pensions trusts etc. so the above is not exhaustive.

While a detailed review of DTT exemptions is beyond the scope of this article, there are exemptions from DTT where the trust has been set up exclusively for a beneficiary that is incapable of managing his or her affairs, or where the trust has been set up

exclusively to benefit a charity.

The distinction between principal objects and beneficiaries that are incapable of managing their affairs (including minors that are grandchildren or minor nieces nephews of the disponer) is important. Where there are principal objects all principal objects will be over 21 before DTT applies. Where the trust is exempt from DTT because beneficiaries are incapable of managing their affairs (e.g. minor grandchildren) all of these beneficiaries need to be incapable of managing their affairs for the exemption to apply.

Although there can be concerns over the availability of the DTT exemption for trustees in planning for a discretionary trust, in some cases the disponer’s concern for the beneficiary viewed as incapable of managing his or her affairs will be greater than the desire to lock in exemptions from tax. In these cases the best approach is to put together as strong a case as possible with respect to the exemption and the reasons for providing assets in trust, while accepting that there may be a query raised as to the availability of the exemption when the trust takes effect.

Although the trustees are primarily accountable for the payment of DTT, the beneficiaries are also accountable and can be pursued for the payment of DTT if the trust appoints assets without paying the liability.

Trust Income Tax Compliance

One aspect that can sometimes be overlooked is the administration and related costs involved in dealing with a discretionary trust on an ongoing basis. This

the Parchment 27 Probate & Taxation Spring 2023
Brian Broderick is an associate director with Kennelly Tax Advisors
Although the trustees are primarily accountable for the payment of DTT, the beneficiaries are also accountable and can be pursued for the payment of DTT if the trust appoints assets without paying the liability

is particularly relevant where there is an investment portfolio etc. and there is a level of income over and above what the beneficiary needs.

Income arising to a trust is subject to tax at 20 in the first instance, but in the case of a discretionary trust accumulated income is subject to a surcharge of 20 if the income is not paid out within 1 months of the end of the year in which the income arose. This can result in a 40 tax rate for a trust.

Any appointment from a discretionary trust that is income in the hands of the beneficiary is subject to income tax in the beneficiary’s hands. If income is accumulated in a discretionary trust and paid out after the 1 -month period, as income in the hands of the beneficiary, the appointment would be subject to income tax at marginal tax rates in the beneficiary’s hands. While there would be a basis for taking a tax credit for the initial 20 income tax charge paid by the trust, the 20 surcharge would be a tax cost for the trust that could not be utilised by the beneficiary. In effect, if the trust delays on the payment of income to a beneficiary, and a beneficiary is subject to income tax on an appointment from the trust, it can be costly from a tax perspective.

For example, if a trust receives 100 of income it will be subject to tax at 20 on this income. If the net income of 0 is appointed to the beneficiary during the tax year (or within 1 months of the end of the tax year) then if this is income in the hands of the beneficiary, the beneficiary would be subject to income tax on 100. The beneficiary would be entitled to a credit of 20 relating to the tax paid by the trust.

If the trust retains the income for more than 18 months beyond the end of the tax year in which it arose, the trust would be subject to a further 20 tax on the income. If the funds are later used to make a payment which is income in the hands of the beneficiary, the beneficiary only gets a credit for the first 20 of tax paid on the income (i.e. the surcharge is not available as a credit).

This is an important consideration in the context of the timing of payments to beneficiaries.

Where trustees make an appointment of income from trust capital (i.e. a distribution from funds that were not subject to income tax in the trust) there is a requirement to withhold income tax at 20 and pay this to evenue. This amount is available as a tax credit, for the beneficiary.

With the complications that can arise around the income tax positions for discretionary trusts, this can often be the most tedious part of dealing with trusts and distributing all income to a beneficiary as it arises can streamline tax compliance. Another approach to consider is structuring investments of a trust in such a way that the investment portfolios are geared more towards capital growth than income, and or looking to set the income at a level whereby it would tie in with amounts needed to fund living expenses of a beneficiary.

Given the detail involved in tedious income tax computations to track income and distributions to beneficiaries in calculating the exposure to income tax surcharges, and the time and cost that can be involved in doing this, a planned approach to the trust investments is very important. Extensive professional

fees in dealing with the compliance for a discretionary trust can accelerate the dwindling of funds held on trust for beneficiaries which is another good reason to limit complicated tax compliance.

There are also some investments that are not suited to trusts from a tax perspective. Certain fund investments are subject to tax at 41 on income and gains, but if income is distributed and treated as income of a beneficiary the credit for tax paid on the income will be limited to 20 . Deposit interest subject to DI T at 33 faces a similar issue. Other types of investments would be subject to 20 tax on income (if distributed within 1 months of the end of the tax year) and 33 on gains.

Trust CGT

Trusts are subject to CGT in the same way that an individual is and in general, if assets are disposed of by trustees or appointed to beneficiaries a CGT charge is triggered.

One exception to this is where assets held in a life interest trust are appointed to remaindermen on the death of a life tenant, in which case the asset rebases for CGT purposes without triggering CGT.

Capital losses arising to trustees are generally ringfenced to the trust but if a loss is triggered by trustees on the appointment of assets to a beneficiary, then that loss can be utilised by the beneficiary if the trustees cannot utilise the loss in the year of appointment.

If there are assets held on trust where trustees plan to sell the asset and distribute proceeds to a beneficiary, then it is advisable to determine if there would be a capital loss first and consider appointing the asset to the beneficiary to be sold if the trust was unlikely to utilise the capital loss. This is most useful in circumstances where the beneficiary may utilise the capital loss at some point in time.

CAT on Appointments

It is important to note that a beneficiary of a discretionary trust may also be chargeable to CAT on a payment from the trust. In practice it is understood that evenue will allow for CAT to be charged on the net of income tax amount, by concession.

The nature of the payment in the hands of the beneficiary is key and while there are many cases where it will be clear as to whether a payment is a capital payment (e.g. 00,000 to fund a house purchase for a beneficiary) or income (a steady regular payment of 00 per month) there are many scenarios in between. It is not always clear as to whether a payment constitutes income in the hands of a beneficiary, or capital.

What is clear is that a payment which is income in the hands of a beneficiary would be subject to income tax for the beneficiary, and CAT on the net of income tax amount if group thresholds are exceeded. A distribution from a discretionary trust that is not treated as income in the hands of a beneficiary (i.e. a capital distribution) would be subject to CAT only.

Settlements During Lifetime

In addition to group thresholds being available to shelter a CAT charge, in cases where discretionary trusts are settled in the lifetime of a disponer, the small

28 the Parchment

gifts exemption may apply if the disponer survives for at least two years after settling the discretionary trust.

Although it can be more tax-efficient to have a discretionary trust funded on death given that no CGT or stamp duty applies, in some scenarios funding a discretionary trust during a disponer’s lifetime can be tax-efficient.

For example, non-resident disponers moving to Ireland may be able to prevent discretionary trust tax arising on death if the assets are settled before moving to Ireland. While this would clearly need to consider the exposure to tax in other jurisdictions, if the assets of the discretionary trust are retained outside of Ireland this can prevent a discretionary trust tax charge kicking in when the settlor dies. Consideration would also need to be given to income tax and CGT anti-avoidance rules for non-resident trusts.

Tax Relief

If a disponer has settled a trust and is tax resident in Ireland when the trust is settled (in the case of a lifetime settlement), or when the disponer dies, then appointments from the trust would be subject to CAT if reliefs are not available.

However, discretionary trusts can provide opportunities for CAT planning around the appointments of assets. For example, if a beneficiary was in a position to qualify for agricultural relief, assets within the trust could be invested in agricultural property.

Under the current rules the family home could qualify for dwelling house relief if the disponer was living in the property or had moved into a nursing home. If the only reason dwelling house relief is not available is that a beneficiary was not living in the house for the required three-year period, a discretionary trust can afford a beneficiary an opportunity to move into the family home and the trustees could appoint the property from the discretionary trust after a three-year period. While there are other conditions to be met, relief may be available and given the full exemption available for properties that qualify for dwelling house relief, the tax benefit can be substantial.

Interest in Possession

If there is an interest in possession, the trust is not subject to discretionary trust tax as it falls outside of the definition of a discretionary trust where the beneficiary has an “interest in possession” in the trust assets. Similarly, any income would generally arise to the beneficiary “in possession” so that the income tax charge would fall to the beneficiary. The interest in possession could take the form of a life interest or an interest in the property for a certain period of time. The benefit of the limited interest itself could trigger a CAT liability and given that more CAT would arise if and when assets are appointed to a beneficiary absolutely, utilising an interest in possession to save on DTT can be a false economy.

In some cases, the need to provide for vulnerable beneficiaries in a certain way may be more important than the associated tax consequences.

Where provision is made for a spouse, a life

interest with discretion over the appointment of capital would not trigger CAT as there is no CAT between spouses. This can allow for flexibility and discretion without creating a DTT charge given that the life interest in the trust assets constitutes an “interest in possession”. If the trustees thought it prudent, the focus of investments could be on capital growth as opposed to income which would be payable to the surviving spouse.

In looking at creating an interest in possession it is also necessary to consider what impact this might have on any means-tested social welfare benefits.

Right of Residence Versus Life Interest

One consideration that a disponer may want to look at in providing for a vulnerable beneficiary is whether it is best to provide a beneficiary with a right of residence in the family home, or a life interest. An exclusive right of residence is treated the same as a life interest. The below focuses on the tax differentials and the legal effects of both would also need to be considered.

If dwelling house relief is not available, then the amount of the CAT to be funded will be crucial if the property is required as a home for a beneficiary and there are no other assets available to fund the CAT.

When a life interest is provided, the inheritance tax charge lies entirely with the beneficiary receiving the life interest, and life interest factors are used to value the benefit for CAT purposes. The beneficiaries taking the property after the life tenant dies would be subject to CAT on the value of the property on the life tenant’s death (presumably having increased over time). The property would rebase on the death of the life tenant for CGT purposes so the remaindermen should be in a position to sell the property with little or no exposure to CGT.

Where a non-exclusive right of residence is provided to a beneficiary, the other beneficiaries would take an interest in the property subject to the right of residence and while CAT would be triggered for all beneficiaries it would be on the basis of the value at that stage. While there is a statutory formula that can be used to calculate the level of benefit received by the beneficiary of the right of residence, in most cases the 10 rule of thumb is used to calculate the level of benefit taken by the beneficiary of the right of residence and the appropriate life interest factor should also be utilised.

The other beneficiaries would be treated as taking 90 of the property and when the right of residence comes to an end (i.e. when the individual occupying the property dies) the balance of 10 will be taken based on the value then. Of course, tax rules can change over time but assuming that the CAT amount is lower overall, the next question that arises is how the CGT position would be impacted. If the individual occupying the property was a dependent relative as defined for the purposes of CGT Principal Private esidence relief, there may be a basis for claiming CGT PP relief on a subsequent sale of the property in which case the overall tax exposure for all beneficiaries should be less if a right of residence was utilised, as opposed to a life interest. There would however be a need to fund the CAT for the beneficiaries ultimately taking the property earlier.

the Parchment 29 Probate & Taxation Spring 2023
The benefit of the limited interest itself could trigger a CAT liability and given that more CAT would arise if and when assets are appointed to a beneficiary absolutely, utilising an interest in possession to save on DTT can be a false economy

Example Life interest versus non-exclusive right of residence


0-year-old brother of disponer provided with property

2 children of disponer ultimately taking property

Property valued at E 1m currently Disponer’s brother lives for 10 years

Property valued at E 1.2m in 10 years’ time

Property sold on death of disponer’s brother

Tax Head Life Interest

CAT for beneficiary occupying property

CAT for ultimate beneficiaries


CAT and CGT rates and thresholds remain the same

Full group thresholds available

No dwelling house relief available

o CGT annual exemptions available

Based on 100 of property value with life interest factor of 0.41 3 41 ,300 benefit

Group B threshold of 32, 00

CAT of 4

Based on 100 of future value


Two Group A thresholds of 33 ,000 each

CAT of 4

Non-exclusive Right of Residence

Based on 10 of property value with life interest factor of 0.41 3 41, 30 benefit

Group B threshold of 32, 00

CAT of 3 4

Based on 90 of current value


Two Group A thresholds of 33 ,000 each

CAT of ,900

CAT on 10 of future value


No threshold remaining CAT of 39, 00

Overall combined CAT of

between 1m and

but PP relief may be available

Points to note

Significant CAT liability falling to the disponer’s brother, but dwelling house relief availability would have a big impact reducing tax to 1 4,900 overall. Dwelling house relief availability for either of the ultimate beneficiaries would also reduce tax liabilities substantially (or entirely).

While the above deals with a specific scenario and makes assumptions on future values and the future tax rules it highlights the potential for significant differences in tax liabilities depending on how a disponer provides for beneficiaries. Each situation should be reviewed on its own merits.

Planning with a life interest

A life interest, in and of itself, can be a useful mechanism in the context of general estate planning if a life tenant pays for the life interest in a property, and the remainderman is in funds to pay for the value of the remainder interest. Where the remainderman has paid full market value for the remainder interest in an asset, there is no charge to CAT when the life interest comes to an end.

This can be particularly useful where gifts are made to purchase the remainder interest at a point in time when the family is not within the Irish CAT net or to utilise thresholds in making an investment that is

Significantly lower CAT liability for beneficiary taking the right of residence.

The ultimate beneficiaries would have to fund CAT earlier and dwelling house relief availability for either of the ultimate beneficiaries would have a big impact.

targeted towards the next generation. In general, assets in a life interest trust rebase for CGT purposes on the death of a life tenant so increases in the value of an asset over time can fall outside of the charge to tax (either CAT or CGT).


The area of providing for vulnerable beneficiaries, together with the use of discretionary trusts and limited interests, is a complex and convoluted area of tax law. Where the tax implications of a discretionary trust are not considered in advance, the costs associated with the administration and tax compliance can become unwieldy. While it is always preferential to model the tax liabilities in advance of the tax triggers, it is important to plan the operation of a discretionary trust. Planning the making and nature of investments etc. from a tax perspective to streamline the tax compliance and administration of the trust is generally a worthwhile exercise. P

30 the Parchment
Stamp Duty None
CGT Negligible (33 of
Total Tax 3 4 4 4 4 if re ief
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32 the Parchment

Right Said Fred

Dr. Fred Logue is the managing partner of FP Logue LLP. A former scientist who worked as an engineer, Fred has built a niche firm that specialises in technology, intellectual property, information law and commercial law. Fred has acted in major information law cases and has most recently been hitting the headlines for his advocacy on the right of access to environmental information and the right to access justice under the Aarhus Convention. Here, Julie Doyle speaks to Fred about his career journey to date

As an engineer and the holder of a doctorate in physics, you have had an interesting journey to become a solicitor. Can you tell us a little about your background and your career before you made the change to law?

I was born in the early 70s and grew up in Drogheda in a fairly typical Irish middle class family. My father was an accountant originally and my mother had to give up her job when she got married. I went to the local primary school and the CBS in Drogheda. I did my leaving cert in the late 80s and was good at maths and science in school, so it was a natural choice to study those subjects in university. At that time Ireland was quite a different place and there just wasn’t the same scope to practise law as there is today. So, I studied science at undergraduate level and got a PhD subsequently. I then worked as a researcher in TCD for a period before moving to Lucent Technologies in Dublin and then in Pennsylvania. I lost my job during the Dot Com crash in 2002 and we moved back to Ireland where I worked in Hewlett Packard and Enterprise Ireland before returning to Lucent where I was working for the Intellectual Property department. I was asked to move back to the US with Lucent, but at this stage I had a young family, and my wife had a career as a teacher, so it was then I decided to train as a solicitor.

It is always a brave decision to change career after many years of study. What prompted your decision to change your career and decide to become a solicitor? Did you have any moments of doubt?

I suppose it was losing my job in the US that made me re-evaluate what I was doing. The Dot Com crash was a pretty bad time economically and there was a lot of uncertainty in the technology world. I also hated my job and to be honest I wasn’t particularly good at it. I found out I liked maths and science as an interest but the reality of a career in that field was less than exciting. In fact it was my wife, who has a law degree, who encouraged me to think about becoming a lawyer having listened to my complaining endlessly about how unhappy I was with my work. I took evening courses in Griffith College to prepare for the FE-1s; those courses were excellent and the lecturers were outstanding, many of whom are now senior lawyers and academics, for example Professor Fiona de Londras and David Conlan Smyth SC.

I was immediately blown away by law, it was something that I had never experienced before during secondary education or later on in third level. I was amazed that individuals such as Mrs Ryan and Mrs McGee could literally change the world by asserting their rights and was also stunned at how powerful our Constitution was and how ordinary people could go

the Parchment 33 Interview Spring 2023
Julie Doyle is a solicitor with West Lex Solicitors She is a member of the DSBA Parchment committee

to court to seek protection under it. That combined with the progressive judgments of the late sixties and seventies just fascinated me. Ironically in 2022 I ended up acting for Patrick Costello TD in his successful challenge to Ireland’s ratification of the CETA agreement. That case resulted in a judgment of the Supreme Court that now takes its place as one of the most important constitutional decisions in the history of the state. I could never have imagined that I would end up in that position when I was sitting in a cramped lecture theatre in Griffith College learning constitutional law in evening classes.

I took the FE-1s in two tranches and used parental leave to prepare. Incredibly I came first in Ireland in constitutional law. I didn’t think about training as a solicitor straight away but by coincidence several years later I was being asked to move to the US around about the same time as the period during which I could get a traineeship was about to expire. It was a question of now or never and luckily, I decided to take the leap. I suppose there was a lot of doubt but eventually the prospect of something new and exciting was enough to overcome the increasing dissatisfaction that I had with precarious employment in the technology sector. And here I am now!

Once your decision was made to commit to a career in law, where did you carry out your traineeship and what area of law were you most interested in?

I trained in A&L Goodbody and even how I started there is another story. One day I saw an ad in the paper looking for experienced IP lawyers. So, I simply phoned them up and asked them if they would take me on as a trainee given my tech experience. I met with John Whelan, the head of IP and he offered me a traineeship which I started a month later. I worked in IP and Competition mainly and was involved in several very significant cases including a huge copyright litigation concerning software, litigation over the waste collection market in Dublin and the competition aspects of a large merger. At that time, I was interested in these areas of law since they were very dynamic and relatively complex. I owe an incredible debt to A&L for taking me on and training me, an experience I have brought with me to FP Logue. I feel that it is important to my clients that they get the same level of service as the state and commercial clients get from big firms and we have found a way to deliver that economically and effectively.

Why did you decide to move to Brussels after you qualified? What type of work were you doing there?

I moved to Brussels in 2009 when I qualified because my wife was offered a secondment to the European School. While I was there, I split my time between looking after my young family and doing a bit of consulting work in the IP sphere. I also took a course in Business Development from DIT under the New Frontiers Program which taught me some of the skills needed to run your own business. Looking back on it now, it was a good transition between two phases of my life and having five years living in a dynamic city without any real career pressure gave me time to

spend with my kids in their early years as well as to try out something new by working for myself.

How did your partnership with journalist Gavin Sheridan come about and can you explain to our readers what is ‘Vizlegal’?

Vizlegal was set up by Gavin Sheridan, I played only a minor role in it really. I got to know Gavin when I was in Brussels. Gavin and journalist Mark Coughlan had an organisation called “The Story” which was using FOI to unlock official information and publish it on the internet. I helped Gavin out on a couple of cases including a complaint to the EU Ombudsman about the refusal of the ECB to release a copy of the famous Trichet Letter threatening to cut off funding to Ireland unless it accepted a bailout. We also worked on an access to environmental information request to NAMA which eventually led to a ruling of the Supreme Court that remains one of the foundational judgments in this area of law. While we were working on these cases we realised that access to publicly available legal information was very poor. The services were expensive, and the free ones were not user-friendly. Gavin decided to set up Vizlegal to produce a tool for lawyers (both barristers and solicitors) to help them get better access to the information they need to do their job. It now covers Irish and international judgments and administrative decisions. Crucially it provides an automated diary system by taking the online legal lists and presenting them in a format that is easy to use, and which makes it much easier to see upcoming court dates. Our firm couldn’t survive without this tool.

Upon your return to Dublin in 2014 you decided to set up as a sole practitioner. How did you decide that this was the right move for you?

I suppose at that time I was in my early forties and hadn’t been in regular employment for a number of years and was enjoying my freedom. I was approached by a prospective client about the possibility of taking a statutory appeal to the High Court on access to environmental information. I decided to go for it and set up the firm with one client and one case and that’s where it started.

Your firm has now successfully expanded to include your partner Eoin Brady and consultant TJ McIntyre, specialising in environment, technology, and information law. How did you set about establishing this niche area of practice?

It would be easy to say there was a grand plan but in fact the firm has grown by me following my instincts and taking on work that I found interesting. The information law practice grew out of my interest in FOI and access to environmental information. The access to environmental information cases put me in touch with the environmental movement and I began to take on planning cases. My first planning case involved a challenge to a proposed cruise ship terminal in Dún Laoghaire which was conceded by An Bord Pleanála and I started picking up more cases through wordof-mouth referrals. I am a very outgoing person and love networking and talking about legal issues, so this has helped me get in contact with lots of people with

34 the Parchment
I was immediately blown away by law, it was something that I had never experienced before during secondary education or later on in third level

interesting problems to solve. I just focused on what I liked and delivered results for people who in turn recommended me to others. We now are one of the main planning practices in Ireland for applicants and we also have an international practice acting for large civil society organisations before the European Court of Justice.

Your firm has been involved in many applications for judicial review of residential housing schemes under the fast-track planning process/Strategic Housing Development applications which is now defunct. Why do you believe so many decisions were challenged under this process?

The basic reason why there were so many judicial reviews stems primarily from the fact that the SHD applications were very unpopular, primarily because the applications routinely proposed material contravention of the development plan. In addition, the traditional two-step procedure that was there was a decision of the local authority which could be appealed to An Bord Pleanála was replaced with a single step application to An Bord Pleanála and a hard deadline for a decision which meant that issues raised during public participation could not result in modifications to the planning application.

The Strategic Housing Development (SHD) scheme has been replaced by the Largescale Residential Development (LRD)

scheme to put the planning process back in the hands of Local Authorities. Do you believe this new process provides a more transparent, fairer planning process?

Some of the worst aspects of SHD have been replaced in L D. The procedure has now reverted to a two-stage process and development plans have been generally reviewed across the country to bring them into line with the National Development Plan and the Regional Spatial and Economic Strategies thereby removing the necessity for material contraventions. I think it is too early to tell whether the decision-making will be better or whether people will attempt to challenge these decisions in court.

It is recognised that developers are frustrated with the judicial review process. With the housing crisis front and centre of the media, is there a toxic narrative around pursuers of judicial review applications and is there a wider construction industry-led push to change the laws around judicial reviews to make it more difficult for the legal challenges to be taken against planning decisions?

The first thing to understand is that the SHD legislation was itself the result of lobbying by developers who were unhappy with perceived delays in decision-making and constraints imposed by Development Plans. So, it has to be said that this is the legislation that they wanted and in effect designed. However, the way that so many SHDs were successfully

the Parchment 35 Interview Spring 2023

judicially reviewed shocked the developers and institutional investors whose expectation of what could be granted permission was exposed to be unrealistic when subjected to legal challenge. This has led to a huge amount of what you rightly describe as a toxic narrative attacking and demonising the public for exercising their rights under EU law. None of this narrative is borne out in reality and in fact what we now know is that judicial review was the one part of the planning system that performed well and maintained its integrity.

The real issues, which were actually exposed by these judicial reviews, were poor quality applications, poor decisions and ultimately serious governance failures in An Bord Pleanála. It is very worrying that the reaction to this is to double down on the attack on access to justice, this time by the Minister for Housing, Local Government and Heritage proposing and the coalition approving a draft bill that proposes swingeing restrictions on public participation and access to justice, many of which will ultimately be overturned in court. It is hard not to see this as a result of intense lobbying from developers and institutional investors and therefore I am quite fearful that the mistakes of SHD (which was not a balanced piece of legislation and was a “developer-led” procedure) will be repeated and amplified across the entire planning system, repeating the mistakes of the past.

The Department of Housing, Local Government and Heritage published the long-awaited draft Planning and Development Bill 2022 on 26 January 2023. Whilst you welcomed the review of the planning process and its objectives, you have been critical of some of the proposed changes and in particular the proposed changes to the judicial review process. As a consequence of these changes what obstacles do you foresee? The draft bill attempts to impose a patchwork of restrictions on who can challenge an environmental decision, limit the grounds of challenge and to make it prohibitively expensive even if you can navigate the minefield of restrictions. All of this is entirely at odds with the idea that there should be wide access to justice at a cost that is not prohibitive. In fact, Ireland signed up to this policy as a Member State of the EU and a party to the Aarhus Convention, which the Court of Justice has said is designed to ensure environmental protection by creating what is in effect an alignment between individual rights and the public interest in environmental protection. The Court said that delays in individual cases resulting from judicial review was a political choice that was made in the interest of environmental protection. Therefore, all these obstacles will have a real and tangible negative impact on the environment through allowing poor development to proceed with reduced public oversight and enforcement. In the end if these obstacles make their way onto the statute book they will be immediately challenged and/or Ireland will face swift enforcement from the European Commission. It will also have the unintended consequence of making weak cases much stronger through unlawful procedures.

As a data protection lawyer, you have called for reform of the Data Protection Commission. Do you think the appointment of two additional Data Protection Commissioners will assist in alleviating the challenges faced by the Commission? What reforms do you consider are necessary to deliver a first class enforcement system? The enforcement of data protection law in Ireland is very poor. A lot of the focus is on the big international cases involving Facebook and TikTok, but the real problem lies in the way data protection rights are routinely flouted by data controllers and to be frank they are getting away with it because there aren’t effective remedies. Court actions are too expensive and the Courts are not equipped to deal with them while the Data Protection Commission’s procedures are ineffective. While I would welcome the appointment of two additional commissioners, I think there needs to be significant procedural reform so that there are transparent procedures which meet constitutional standards. For example, the Data Protection Commission doesn’t have proper factfinding powers. There is no evidence on oath, there are no oral hearings and there isn’t even a published procedure. Without this level of reform there will not be adequate data protection enforcement for the public generally.

The press has described your work as straddling the line between advocacy and activism. What do you believe are the greatest challenges in striving for individuals rights?

I disagree that my work straddles activism. I think you shouldn’t confuse advocacy with activism. My clients are not powerful, they don’t have P advisors or ready access to the media. So, part of my job is to speak for them. So, when I do interviews such as this I am speaking for my clients more than for myself. While naturally I would identify with many of my client’s issues since they are really concerned about the environment, at the end of the day they are not my issues, but I do consciously communicate their positions in media settings such as this so that their point of view is put out there. I see that as an important part of my job as a lawyer, particularly as a solicitor, to do this in a way that is objective and rational.

Finally, what drives you to take on a cause?

From the early days when I started studying law, I was enthralled by how the individual could take on the power of the state in court. The scales of justice were genuinely balanced in a courtroom where everyone has a right to be heard before an impartial tribunal established by law. This is a fundamental cornerstone of our democracy. I was also blown away by how progressive E laws have in effect saved us from our worst urges, particularly by forcing us to be a more open and diverse society, guaranteeing equality and protecting the environment. It’s this combination of strong and progressive laws being enforced by members of the public and civil society often in the public interest that continues to motivate me to take on new and interesting cases.

36 the Parchment
I am quite fearful that the mistakes of SHD (which was not a balanced piece of legislation and was a “developer-led” procedure) will be repeated and amplified across the entire planning system, repeating the mistakes of the past

Sentencing Children

The issue of dealing with children convicted of the most serious offences was recently brought into sharp focus by

In this recent case, Mr. Justice Hunt referred to a ‘yawning gap’ in the Children Act 2001, as it is completely silent in relation to children convicted of serious crimes. The learned Judge had considered, and subsequently imposed, a sentence with an inbuilt review. He adjourned the case to allow the Oireachtas to respond and an amendment to the Children Act has been promised. There are a number of gaps in the legislation, but the most constitutionally flawed issue arises from the ad hoc approach adopted by the Judiciary when imposing sentences with an inbuilt review.

Sentences with Inbuilt Reviews

The practice of imposing a sentence with an inbuilt review was criticised by Keane CJ in he eo e v Finn ([2000] IESC , [2001] 2 I 2 ). eane CJ noted that the power to remit or commute sentences can be found in Article 13.6 of the Constitution, which provides that this power is vested in the President. Article 13.6, however, permits this function to be delegated to another body by law (Article 13. of Bunreacht a h ireann 193 ). This function has been delegated to the Executive under section 23 of the Criminal Justice Act 19 1.

Keane CJ found that the practice by the judiciary of passing sentence with an inbuilt review is not constitutionally sound, as this would require further legislative intervention. He said that sentence reviews give rise to a number of legal issues, are undesirable and should be discontinued. Despite the clear assertion from the Supreme Court that such sentences are in breach of the separation of powers, the Courts have continued to impose sentences with inbuilt reviews when sentencing children convicted of serious offences.

The Court of Criminal Appeal upheld such a sentence in DPP v D.G ([200 ] IECCA ). In this case, Murray CJ upheld the constitutionality of sentence reviews as he was of the view that such a sentence does not impinge on the Executive’s delegated function to exercise clemency. The reasoning behind this appears to be the nature and gravity of the offence, as well as the young age of the offender. He refers to the Court having regard to their welfare and rehabilitation in the future.

Although the Court appears to have regard for the welfare of the child, the use of such sentences does not

seem to be constitutionally sound. In DPP v Finn, Keane CJ said that sentences with an inbuilt review should be clear and transparent.

The approach that has been adopted by Murray CJ is neither clear nor transparent. Keane CJ acknowledged the desirability for such an honourable approach but said “… as the law presently stands the courts cannot exercise this function in individual cases by reason of the separation of powers mandated in this regard by Article 13 of the Constitution”.


When dealing with children convicted of serious crimes the Judiciary seem to favour the sentence review approach. The Supreme Court noted the honourable motivation behind such sentences but found that, in the absence of legislative intervention, they are in breach of the separation of powers. The approach taken in relation to children is certainly an honourable one, as it has regard to the welfare and rehabilitation of the offender but, in the absence of legislation, this approach would seem to be constitutionally unsound. The courts and the legislature do take a different approach to children, which can sometimes involve a slight diminution or enhancement of certain privileges and rights. However, it is extremely difficult to countenance a divergence from a basic constitutional principle, such as the separation of powers, when dealing with a specific class of people in society, no matter how vulnerable they might be. If the Oireachtas wishes to delegate such a function to the Judiciary an amendment to the Children Act is required.

the Parchment 37 Criminal Law Spring 2023
Mr. Justice Hunt when he was tasked with sentencing a child convicted of murder. Darren Gray considers the issue of inbuilt reviews in sentencing
Darren Gray is a solicitor at O’Sullivan Kenny Solicitors

Significant Changes in Personal Injury Litigation

ThePersonalInjuries esolutionBoard Act 2022(“theAct”)was signedbythePresidentonthe13thofDecember2022.On th ofJanuary2023,theMinisterofStateforEnterprise,Tradeand EmploymentsignedanOrderbringingsomeoftheprovisionsofthe Act intooperationonthe13thofFebruary2023.MichaelMulcahySC assessesthechangeswhichareimportantforpractitioners to note

ThisnewAct, as isapparentfromthetitle, marksashiftinthefunctionsofPIAB frombeingmereassessorsofclaims to beinginvolvedintheresolution(by mediation)ofclaims.Significantly,the provisionsdealingwithmediationhavenotyet beencommenced.However,thereareseveralnew provisionswhichwillbeofsignificantimportance to personalinjurypractitioners

han eofNa e S Notenacte yet ThenewnameforPIABisthePersonalInjuries esolutionBoard.

e ire ent to pro i ef rther infor ation S 3 c Notenacte yet Aclaimantmustsigntheapplication,andconfirm thefollowing

a) TheClaimant’sname,contactdetailsand ordinaryaddress.

b) TheClaimant’sPPSnumber.

c) Thenameandaddressofthepersonwhomthe Claimantbelievesisresponsiblefortheirinjury.

d) Thedateandtimeonwhichthealleged accidentorincidentoccurred.

e) Adescriptionofhowandwhereitisalleged thattheaccidentorincidentoccurred.

f) Adescriptionofthepersonalinjuriesallegedly sustained.

g) Encloseamedicalreportdescribingthe personalinjuriesallegedlysustainedbythe Claimant.

3 Ne ence e nfor ation S nacte

1. The Act createsanewoffencefor “a personwho knowingly,orrecklessly,providestheBoardwith informationwhichisfalseormisleadinginamaterial particularinconnectionwithanapplication...” ( 0A(1))

2 Di c o reofinfor ation to ar a S nacte

The Act empowerstheBoard to discloseinformation to theGarda ,which,intheopinionoftheBoard, mayrelate to thecommissionofanoffence.

4 o t an en er S nacte

The Act provides

a) IfaClaimantisnotawardedinCourtasumin damagesgreaterthantheassessment,orifthe Claimantsettlesitsclaimforasumnotgreater thantheassessment, “no award of costs nor any other order providing for payment of costs” maybemadein favouroftheClaimantbytheCourt.

( .B.Thisrulewillnotapplyiftherespondent makesaformalofferlessthantheassessment,ora formaltenderofferismade.)(See S.1 of200 Act)

b) Anassessmentmadebythe(new)PI B,whichhas beenacceptedbytherespondent,willbedeemed to beanofferoftender,madebytheDefendant intherelevantproceedingspursuant to the ules ofCourt,equal to theamountoftheassessment, as andfromthedatethattherespondenteither accepted,orwasdeemed to haveaccepted,the assessment.

38 the Parchment

ycho o ica in rie inc e S a iii nacte

The Act abolishesthe(previous)requirementof PIABnot to makeanassessmentofcasesinvolving psychologicalinjuries.(S.1 (1)(ii)(II)of2003 Act deleted).

ten ionofti e herethe on ter pro no i i nc ear S 4 nacte

a) Section14insertsanewSection,Section49Ainto thePrincipal Act (2003).

b) Thenew Act abolishes,inSection (iv),the (previous)discretionoftheBoardnot to make anassessmentinsituationswheretheBoard’s obligationunderSection49mightnotbecomplied with,whilealong-termprognosiswasbeingmade. (S.1 (1)(iii)).

c) The Act providesthatPI Bcanextendtheninemonthperiodforassessment(S.49of2003Act) forafurtherspecifiedperiodwheretheClaimant’s longtermprognosisis“unlikely to beavailable” withinthenine-monthperiod,forthepurposeof obtaininga“furthermedicalexamination”. Afterafurthermedicalexaminationifalong-term prognosishasnotbeendetermined,theBoard mustwrite to theclaimantandtherespondent(s), andifeitherpartydoesnotconsent to theBoard continuing to dealwiththematter,thentheBoard mustissueanAuthorisation to theclaimant.

e iation Section 3 Not yet enacte

1) The Act providesthataClaimant“mayapplyfor

resolutionofhisorherrelevantclaimbywayof mediation”. S.3 (a)

2) The Act alsoprovidesthattheBoard“may,whereit considersappropriate–invitetheparties to consider mediation”.S.1 B(1)(a)

3) However,the Act states “Participationinmediationbythepartiesis voluntary”,andeitherpartymaywithdrawfrom themediation “at anytimeprior to thedateof completionofthemediation”.S.1 B( )

4) Evidenceintroducedintoamediationmaynot necessarilybecomeprivilegedifitisotherwise admissibleorsubject to discoveryinCourt proceedings.S.1 B(12)

) Eitherpartyhasaten-daycooling-offperiod fromthedateofcompletionofthemediation, to decidenot to accepttheagreementreachedatthe mediation.S.1 C(3)

) Whereamediator’sreport to theBoardstatesthat thepartieshavereachedagreement,and ten days haveelapsedfromthecompletionofthemediation, theBoard“shallproceed to issueanOrder to pay.”

S.1 C(4)

) TheBoardmayformapanelofmediators.S.1 D(1) (2)

) TheBoardmaymakeproceduralrulesforthese mediations.S.1 F(1)

It shouldbenotedthattheforegoingisaver yshort precisofthemostimportantchangesinthenewPI B Act,andpractitionersareofcourseadvised to readthe legislationthemselvesso as to understanditfully.

the Parchment 39 Litigation / News Spring 2023 P
Michael Mulcahy SC is a Chartered Arbitrator and Accredited Mediator

Are you Instructing the Correct Expert?

Nicholas Moore assesses two recent cases which highlight the importance of obtaining the correct expert opinion in medical negligence and personal injury cases

Allegations of negligence against healthcare professionals must be supported, in writing, by a relevant professional with the necessary expertise. As a result, experts are at the heart of every medical negligence and personal injury case.

Sometimes it may not be completely clear what type of expert should be instructed. Experienced expert witnesses will often be able to advise solicitors if they are not suitably qualified to accept instructions. However, this is not always the case. In the case of obinson v ercier a claimant had to withdraw their case as their expert was not suitably qualified to comment on breach of duty and causation.

The claimant had alleged negligence on the part of the defendant for failure by one of its maxillofacial surgeons to remove her upper left second molar whilst under general anaesthetic. The claimant’s case at trial in respect of breach of duty and causation rested solely on the expert’s evidence. But the expert was a general dental practitioner. At the conclusion of the expert’s evidence the claimant withdrew her claim against the defendant.

The defendant sought a costs order against the expert. The expert was of the opinion that he had expertise that was well suited to the case, and he had at all times acted properly and consistently with his duty.

The defendant did not agree that he was an appropriate expert and claimed it should have been obvious to the expert that as a general dental practitioner he should not have been expressing an expert opinion on the standard of care afforded to the claimant by an oral and maxillofacial surgeon.

The court held that the expert had been instructed to identify if any errors had been made so when he received those instructions it must have been obvious to him that he was not able to comment on whether a person exercising a wholly different role had made errors such that they could be deemed negligent. The court went on to say that the expert had shown a flagrant and reckless disregard for his duties to the court and had done so from the outset in preparing a report on subject matter in which he had no expertise. The defendant’s application was granted and an order for costs against the expert made in the sum of 0, 43. .

Even if a solicitor has correctly identified an expert to give their opinion to the court, it may not be accepted. The court may not accept an expert’s opinion if it is believed that they are biased or acting as a “hired gun”. Expert witnesses are obliged to give an unbiased opinion after reviewing the facts and evidence presented to them. In a recent Court of Appeal case, u y v rendan c ee trading as

40 the Parchment

c ee nsu ation ervices and nor , a defendant’s expert opinion was disregarded in its entirety.

In this case, the plaintiffs engaged with the defendant to upgrade the insulation in their house using a product called Icynene. The spray foam used was highly toxic. The defendant arrived at the plaintiff’s home and removed the old fiberglass insulation and replaced it with the new insulation. Certain holes were left in the ceiling of the attic after the first day. The wife and child stayed in the kitchen for most of the day and the family slept in the house that night. The defendant advised the plaintiff to leave the windows open, but the plaintiff closed the windows that evening when it got cold.

The plaintiffs developed reactive airways dysfunction syndrome as a result of being exposed to the toxic chemicals. The plaintiffs brought a personal injury claim against the defendant as they claimed they should not have been allowed to stay in the house while the insulation took place and for two hours after completion. It was also claimed by the plaintiff that the defendant did not provide the proper ventilation.

At the trial the defendant’s expert toxicologist provided evidence which refuted the allegations of the plaintiff. The essential evidence from the expert

was that the chemicals dispersed within 30 to 90 minutes and therefore the defendant was not negligent.

At the conclusion of the trial the High Court rejected the entirety of the expert’s opinion, as he was not acting as an independent witness. An issue was raised with his evidence as he had previously delivered a paper to the Spray Polyurethane foam insultation industry entitled “How to avoid a lawsuit”. The court held in favour of the plaintiff and determined that the defendant was negligent.

The defendant appealed the decision, one of the central issues being that the trial judge erred in excluding the evidence of the expert toxicologist.

The Court noted that it is commonplace for experts to succumb to the natural tendency to put the interests of their own client first and that “hired gun syndrome” was an inevitable by-product of adversarial litigation. The Court was satisfied that the High Court was correct in its findings and dismissed the defendant’s appeal.

Both the u y case and the obinson case highlight the importance of expert opinion in medical negligence and personal injury cases. It is clear from these recent cases that great care should be taken when selecting an expert, both in terms of their qualifications and their credibility.

the Parchment 41 Litigation Spring 2023 P
The court may not accept an expert’s opinion if it is believed that they are biased or acting as a “hired gun”
Nicholas Moore is a solicitor at Lavelle Partners

Serious Pension Problem for Divorcees

It is important to note that these master trusts will only relate to private pension schemes and public pension schemes will not be affected. This problem can be resolved by the Pensions Authority issuing guidelines and the introduction of emergency legislation. The Law Society has drafted this legislation, provided it to government and the Pensions Authority and is calling upon the Pensions Authority and government to take immediate action. In a recent communique to members, the Law Society stated they have told the Pensions Authority that “There will be serious knock-on effects from new E pension legislation on death-in-service benefits for former spouses. This is a result of increased compliance and governance obligations for trustees of occupational pension schemes arising directly from the implementation of the European IO P II’ Directive by The Pensions Authority. A large-scale and market-wide movement of private-sector, defined-contribution occupational pension schemes to Master Trusts is currently underway. Master Trusts overseeing multiple pension schemes spread compliance and cost risks across all of the participating employers.”

Death-in-Service Anomaly

o payment will be made to the beneficiary of a Contingent Benefit Pension Adjustment Order on the death in service of a member of a scheme that has moved to a Master Trust, as matters currently stand. The potential financial loss to such a beneficiary may be in the region of several hundred thousand euro (depending on the value of the contingent benefit), the Law Society has warned.

Court orders in family-law divorce and separation cases, requiring death-in-service payments to be made to the surviving ex-spouse or dependant family members, cannot be enforced given that the order relates to the original pension scheme – and not the new master trust.

There is a short timeframe under which such orders can be varied by the courts, hence the urgency.

Emergency Legislation Sought

The Law Society believes that the issue is of such severity that emergency legislation is required.

Law Society Director General Mark Garrett said the situation is “very serious” and that it must be dealt with “without delay”. “The potential financial loss to such a beneficiary may be in the region of several hundred thousand euro”. Mason Hayes

Curran LLP pensions partner Stephen Gillick was quoted by Ga as stating

“The problem concerning contingent assets in pension ad ust ent orders, and the oss o benefit hen sche es are transitioning to master trusts, is of huge concern to all involved in the pensions industry.

rustees and i e o ces are des erate or c arity on the issue, and the a ociety s etter to the ensions uthority can only assist in the speedy delivery of a solution.”

Significant work in identifying this problem and working out a solution was done by Lorna Duffy solicitor, Olga Daly actuary, Dr. Geoffrey Shannon, Helen Coughlan solicitor and Peter Doyle solicitor and Chair of the Law Society Child and Family Law Committee.

At the time of the arch ent going to press this problem has not yet been remedied but it appears that progress has been made.

42 the Parchment
Due to the movement of pension funds to a new master trust scheme following a new E law, pension orders made to benefit divorced spouses in relation to death-in-service pension benefits could now be set at nothing. eith Walsh SC assesses the problem
Family Law Keith Walsh SC is a Dublin solicitor practising primarily in the area of family law and family disputes. He is a quali ed mediator and collaborative lawyer. He is a former Editor of the Parchment and former President of the DSBA

Removal of Commissioners for Oaths?


The modern basis for the appointment of Commissioners for Oaths in Ireland is statutory in nature. The power to appoint a commissioner to take oaths or affidavits vested in the Lord Chancellor by virtue of S. 3 of the Supreme Court of Judicature (Ireland) Act 1 and that power transferred to the Chief Justice by S.19(3) of the Courts of Justice Act 1924. That was repealed by the Courts (Supplemental Provisions) Act 19 1 which provided (S.10(1)(b)) that “the power of appointing… commissioners to administer oaths” “shall be exercisable by the Chief Justice”, making it one of the administrative functions of the Office of the Chief Justice.

However, the 19 1 Act makes no express provision for the removal of a Commissioner for Oaths which, given that the prior legislation which vested that power in the Lord Chancellor and which then transferred it to the Chief Justice of the Saorst t Courts did, is somewhat of an anomaly. Accordingly, the basis on which a Commissioner for Oaths may be removed, and whether the Chief Justice has jurisdiction to do so, was unclear.

However, a panel of three Supreme Court judges (Mc echnie, Dunne and Baker JJ) produced an advisory opinion to the Chief Justice dealing with that very question. Although it was delivered in ovember 2020 ([2020] IESC 9), it was only uploaded to the judgments section of the Court Service website on 1 th February 2023, making its general availability quite recent.

The opinion reviewed the history of Commissioners for Oaths, before considering whether there is an inherent power to remove one by reference to an analogy with notaries public where such an inherent power has been recognised. The opinion also distinguished the position of solicitors who, by virtue of S. 2 of the Solicitors (Amendment) Act 1994, have all the powers of Commissioners for Oaths. However, those powers do not derive from the warrant of the Chief Justice and exist only insofar as the relevant solicitor holds a valid practising

certificate, such that the powers the courts may exercise over solicitors is not analagous.

Having considered the position, the advisory opinion determined that the Chief Justice does have a power to remove a Commissioner for Oaths such power exists as an inherent power since the Chief Justice is to appoint a Commissioner for Oaths to serve under the Chief Justice’s authority and, as provided in the warrant of appointment, “at [the Chief Justice’s] pleasure” the power of removal may be exercised on application to the Chief Justice, as well as on his her own motion and absent any formal procedure, any process should respect the principles of natural justice.

ltimately, the opinion did acknowledge that it would be desirable for the matter to be clarified by putting on a statutory footing clarification of the power to remove and appropriate applicable procedure.

It is worth also noting that, arising from the advisory opinion, Supreme Court Practice Direction SC22 from January 2021 provides for the instigation of an inquiry into the continuing suitability of a Commissioner for Oaths. That includes the possibility of the inquiry being based upon a written complaint or upon information coming to the Chief Justice’s attention, and the Practice Direction also sets out in general terms a process to be adopted in considering whether to remove a Commissioner for Oaths.

the Parchment 43 News Spring 2023
Gear id Carey examines
recent Supreme Court opinion on whether a Commissioner for Oaths may be removed, and whether the Chief Justice has jurisdiction to do so
Gearóid Carey is a partner at Mason Hayes & Curran LLP

Robert Purcell 1974 - 2023

Robert Purcell died on the 27th of February 2023. Robert was widely regarded as one of the leading criminal defence solicitors in the country having spent his entire career with the firm of M.E. Hanahoe Solicitors

Robert was the son of the legendary Galway GAA player Sean Purcell and came from a large extended family. A graduate of Garbally College in Ballinasloe, Robert completed his undergraduate degree at Waterford Institute of Technology before graduating from Trinity College Dublin where he completed a Masters in Law in 1997. He completed a traineeship with M.E. Hanahoe Solicitors and was admitted to the Roll of Solicitors in 2004. While training to be a solicitor Robert met Tessa Robinson who was training to become a barrister. They married at Ballintubber Abbey, Co Mayo in 2005. He was made partner with the firm in 201 .

A protégé of Michael Hanahoe, Robert focused his practice on Criminal Defence which he mastered over a 20-year career advising clients in cases appearing before the District, Circuit, Central Criminal and Supreme Courts as well as the Court of Appeal and European Court of Human Rights.

A champion for unpopular causes, he was a consistent advocate that a strong defence is the measure of a strong justice system. Robert built a reputation for defending the most challenging cases concerning the most troubling of accusations. He afforded the same level of respect and dignity to all those whom he represented, without consideration of background or history, and approached each case with diligence and professionalism regardless of the charges they faced. Compassionate and empathetic, he was particularly admired for the lengths he went to in comforting and assuring the families of the accused subjected to the stress and anxiety of having a loved one exposed to the criminal justice system.

obert was a long-standing member of the Law Society’s Criminal Law Committee having joined it in 2009 and eventually becoming its chairman. Colleagues described Robert as a leader in building a robust criminal justice system in the country and a powerhouse behind all of the major policy reform initiatives of the Criminal Law Committee.

Some of Robert’s more notable contributions included assisting with the Law Reform Commission Consultation Paper on Jury Service, providing commentary on the Gender Recognition Act 2015 and its impact on transgender prisoners and addressing the Dail Justice Committee on the Criminal Justice ( ictims of Crime)

(Amendment) Bill 201 . obert was also a member of the Law Society Gazette Editorial Board and frequently

contributed to the publication by writing articles or facilitating interviews concerning developments in criminal law.

Robert was also keenly interested in legal education and dedicated to ensuring that criminal law maintained a high profile in the training of solicitors. He was extremely generous with his time, knowledge and talent and was often observed in the courts offering counsel and guidance to more junior solicitors in other firms on the intricacies of complex applications and procedures. A regular lecturer and tutor on the Professional Practice Course, Robert delivered Continuing Professional Development (CPD) papers on the Criminal Justice Act 2011 and District Court Rules and, following the decision to permit solicitors to be present to advise during questioning, co–authored the Law Society’s guidance for solicitors attending Garda Stations.

Robert’s love of sport and dedication to physical fitness was well known. A long-term follower of Galway hurling, he was in Croke Park to see his team lift the Liam MacCarthy Cup in 2017. A keen cyclist, when not otherwise traversing the country on his road bike he could often be observed racing along the quays between his office at Sunlight Chambers on Parliament Street, the Criminal Courts of Justice, and various Garda Stations, always substituting his helmet for his trademark military cap on arrival.

His son Rory tragically passed away last year on the 1st of February 2022. He is survived by his wife Tessa, daughter Amy, and son Aran. P

44 the Parchment Obituary

EU Imposes Higher Duties on Company Directors

The CEA information note is aimed at assisting directors in understanding their obligations pursuant to the European nion (Preventive estructuring) egulations 2022 (the EU Regulations). Given the difficulties faced by businesses post Covid and particularly the current energy crisis, the information note is a helpful reminder of the standards which must be met to ensure directors are compliant with their statutory duties and of the options available to directors who are concerned about financial difficulties.

1. Early Warning Tools

The E egulations provide that a director may have regard to early warning tools, which are defined as echanis s to a ert the directors o the co any to circu stances that cou d give rise to a i e ihood that the co any concerned i be unab e to ay its debts and can identi y the restructuring ra e or s avai ab e to the co any and signa to such directors the need to act ithout de ay

The information note stresses the importance of directors maintaining adequate accounting records on a continuous and consistent basis (which is a statutory requirement). It also provides that consideration of management accounts, supplemented by proper budgeting and cashflow forecasting and having regard to the challenging environment, will allow responsible directors’ plan and take the necessary measures to mitigate risk.

To assist company directors identify, at an early stage, whether an insolvency situation may be developing, a list of indicators or early warning signs is annexed to the information note. Declining sales, aged debtors, high volume of stock and late filing of evenue returns are all included as indicators of financial difficulties.

2. Restructuring

In terms of taking steps to avoid a liquidation scenario, the earlier that a company can detect its financial difficulties and take the appropriate action, the higher the probability of success of a restructuring process. There are a number of restructuring rescue processes available to Irish companies, including examinership,

the Small Company Administrative escue Process (SCARP), informal restructuring arrangements and schemes of arrangement. If directors seek the necessary advices in time, one of these processes could be used to restructure and ultimately save the business.

3. Duties on Insolvency (or Potential Insolvency)

The information note warns directors that where they have reasonable cause to believe that a company is, or is likely to be, unable to pay its debts, their duties under the Companies Act, 2014 (CA 2014) are triggered.

The E egulations have imposed an additional statutory duty on directors. Section 224A(1) CA 2014 provides that a director of a company who believes, or has reasonable cause to believe, that the company is, or is likely to be, unable to pay its debts shall have regard to

a the interests o the creditors,

b the need to ta e ste s to avoid inso vency, and

c the need to avoid de iberate or gross y neg igent conduct that threatens the viabi ity o the business o the co any

Therefore where a director has cause to believe that the company is or is likely to be unable to pay its debts, their duty shifts from the interests of the shareholders to having regard to the interests of creditors. While this obligation was in place in common law, it now has specific statutory effect.

4. Potential consequences of noncompliance with directors’ duties Directors should be mindful that they can be penalised for breach of their statutory duties, they may be subject to restriction or disqualification orders and can be made personally liable for some or all of the debts of the company. In certain circumstances, company directors can also be held criminally liable for breaches of company law. It is, therefore, imperative that directors are aware of their increased duties and obligations under company law.

The best way to ensure that you as a director are meeting your statutory duties and responsibilities is to seek and comply with professional advice as soon as there are warning signs.

the Parchment 45 Company Law Spring 2023
The Corporate Enforcement Authority (CEA) has recently issued an information note, which provides guidance to directors in respect of early warning tools, director’s duties and restructuring processes for companies in financial difficulty. Mark Woodcock and Ciara Gilroy assess the position
Mark Woodcock is a partner and Head of Insolvency and Restructuring at Fieldfisher Ciara Gilroy is an associate at Fieldfisher

Transparent Employment Contracts –Implications for Employers

The European nion (Transparent and Predictable Working Conditions) egulations 2022 were signed into law, and came into force, on 1 December 2022. The egulations implement Ireland’s obligations, under Directive (E ) 2019 11 2 on transparent and predictable working conditions in the European nion, into national law. Ciara O’ ennedy reviews the egulation and spells out the implications for employers

The low-key introduction of the egulations just before Christmas may have diminished the significance of the changes that they have introduced (particularly on contracts of employment and terms and conditions of employment).

The egulations create new employee rights and amend employers’ obligations under the Organisation of Working Time Act 199 , the Terms of Employment (Information) Act 1994 and the Protection of Employees (Fixed-Term Work) Act 2003.

The Government press release announcing the publication of the egulations stated that these ne rights i cover a or ers in a or s o or , inc uding those in the ost e ib e non standard and ne or s o or such as ero hour contracts, casua or , do estic or , voucher based or , or at or or

The most significant changes introduced by the egulations are outlined below.

Probationary Periods

There has been a significant change to the law governing probationary periods.

In the case of private sector employees, probationary periods of employees shall not exceed six months unless

there are exceptional circumstances. A probationary period can, on an exceptional basis, be longer than six months, but it must “be in the interest of the employee”, and it cannot exceed 12 months. It remains to be seen what will ultimately be considered to “be in the interest of the employee”.

If an employee avails of specified types of protected leave during the probationary period, then the probationary period can be extended by the employer for the duration of the employee’s absence. Any probationary period in a fixed-term contract needs to be proportionate to the expected duration of the contract and nature of the work. A probationary period is not permitted in the renewal of a fixed-term contract, where the renewal relates to the same tasks and functions.

For employment contracts entered into on or before 1st August 2022, with a probationary period exceeding six months, the probationary period shall expire on the earlier of the expiration of the sixth month or by 1st February 2023, which has now passed.

Employers should review their current contracts of employment to ascertain if any employees have contracts with probationary periods for longer than six months, including circumstances where any

46 the Parchment

initial probationary period has been extended, as these periods may all have now expired and if so, consideration as to the status of such employees is recommended.

Employers would also be well advised to review their existing employment contracts and probationary practices in light of these changes. Employers may also need to re-examine their performance management processes to ensure employee reviews are conducted in a timely fashion and completed within the new restricted probationary period.


Employees may no longer be restrained, without notification, from working for another employer outside of their work schedule i.e., they may choose to take up additional or parallel employment. The adverse treatment of an employee who takes up other employment is now prohibited. It is still permissible to impose a restriction on the right to work for another employer if it is proportionate and based on objective grounds. If an employer wishes to impose an exclusivity clause, the justification, or objective grounds on which the restriction is based, must be clearly set out in the contract. The egulations

include a non-exhaustive list of objective grounds which includes

(a)Health and safety

(b)The protection of business confidentiality

(c)The integrity of the public service

(d)The avoidance of conflicts of interest

(e) Safeguarding of productive and safe working conditions

(f)The protection of national security

(g) The protection of critical and national infrastructure

(h)The protection of energy security

(i)The administration of public service functions

(j)Compliance by the employer and the employee with any applicable statutory regulatory obligations

(k)Compliance by the employee with any professional standards for the time being in force. There are further grounds that are specific to the healthcare sector.

It seems likely that in most full-time employment relationships, an employer may rely on example (k) above in an exclusivity clause, as having another job would likely result in that employee working more hours than is permitted under the Organisation of Working Time Act 199 .

the Parchment 47 Employment Law Spring 2023
In the case of private sector employees, probationary periods of employees shall not exceed six months unless there are exceptional circumstances
Ciara O’Kennedy is a partner at LK Shields and the chair of the DSBA Employment Law Committee

Variation to Written Employment Terms

The Employment (Miscellaneous) Provisions Act 201 introduced the requirement to provide a Statement of Terms within five days of the commencement of an employees’ employment to include

The full name of the employer and the employee

The address of the employer

The expected duration of the contract

The method of calculating pay and the pay reference period

The expected length of the working day and week

The information to be provided to an employee within five days has now been extended to also include the following

Duration and condition of probationary period, where one applies.

The place of work or where there is no fixed or main place of work, confirmation that the employee is employed at various places or is free to determine their own place of work.

The commencement date, title, grade, nature or category of work, or a brief specification or description of work and details of the terms and conditions relating to hours of work (including overtime).

Employers are now also required to provide a statement of terms and conditions within one month (previously two), and must include additional information as follows

Pay intervals, details of any paid leave, including annual leave and public holiday entitlements, details of any sick pay entitlements, details of any pension and or pension schemes, the period of notice to be given by employer employee and any collective agreements that may affect terms of employment.

The employer must now also provide detail of training that will be provided, where mandatory training is required by law.

The identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provider by the employer.

If an employee’s working pattern is unpredictable, the employer must now set out the number of guaranteed paid hours and the remuneration for those hours. The hours and days must be referenced, as well as the notice period for work assignments.

Changes to Terms and Conditions

Where changes are made to the written statement of employment provided to an employee, employers are now required to notify the employee in writing of the nature and date of any change no later than the day on which change happens. This time limit is particularly onerous on employers.

More Predictable Working Conditions

An employee who has been in the continuous service of an employer for at least six months and who has completed their probationary period may request a form of employment with more predictable and secure working conditions, if available. Employers must consider these requests and provide a reasoned response to the employee if the request is not successful. A request can then be submitted every 12 months if refused. Subsequent employer responses can be verbal, subject to certain conditions.

Mandatory Work-related Training

Training must be provided free of charge where it is mandated by law. Time spent on such training will count as working time and will take place during working hours, if possible.

Predictability of Work: Improvements for Precarious Working Conditions

A key objective of the Directive was to provide more favourable and predictable working conditions for those in precarious working situations.

Employees may now refuse work if they are given less than 24 hours’ notice of the scheduled work, without being subjected to adverse treatment from their employer. How this will play out in practice remains to be seen.

Thoughts and Considerations

The changes introduced by the egulations affect the foundation of all employment relationships the contract and the terms and conditions of employment. Some employers may be able to avoid the full impact of the egulations if their employees are subject to a collective agreement or a registered employment agreement.

All employers should review their contracts in light of these changes, to ensure that they are in compliance.

In particular, we would advise employers to review their existing probationary practices and to ensure that all new employees are assessed and reviewed in a timely manner from the commencement of their employment to ensure that any required appraisals are completed in advance of the six-month restricted period.

Considering the onerous obligations to provide more detailed information within more restricted periods, we would also advise employers to issue contracts (containing all information required at both the five-day stage and the one-month stage) in advance of an employee commencing employment.

Existing employees are entitled to request this information, but they are not entitled to it until they submit a request. And existing employees do benefit from all of the additional rights introduced by the egulations.

48 the Parchment
P Employment Law
Employees may now refuse work if they are given less than 24 hours’ notice of the scheduled work, without being subjected to adverse treatment from their employer



If not, please contact Maura Smith.

If not, please contact Maura Smith

Dublin Solicitors Bar Association, 1st Floor, 54 Dawson Street, Dublin 2, Ireland.

Tel: 01 670 6089 • E-Mail: • Update your personal details online at:

Dublin Solicitors Bar Association, Unit 206, The Capel Building, Mary’s Abbey, Dublin 7, Ireland. Tel: E-Mail: • Update your personal details online at:

Moving on from Maintenance of the Status Quo?

Gavan Carty reviews the ancient torts of champerty and maintenance and the law on third-party legal funding arrangements

The ancient torts of champerty and maintenance were first formalised into the statutory law of England and Wales by the Maintenance and Embracery Act (1 40) of Henry VIII. This Act sought to combat corrupt practices in the mediaeval courts. These same provisions were duly transposed into Irish law by means of the Maintenance and Embracery Act (1 34) during the reign of Charles I. Similar provisions were introduced across the common law world.

Most countries have now repealed these provisions. England and Wales did so partially in 194 and fully in 19 Australia did so between 1933 and 19 most states of the USA have abolished the torts. Only in New Zealand and Ireland has their existence been preserved. In Ireland, the Statute Law Revision Act (200 ) examined all statutory legislation enacted prior to 1922 with a view to repealing all provisions that were obsolete or otherwise undesirable. Despite the repeal of the equivalent provisions in other jurisdictions, the Irish Government specifically opted to retain the 1 34 Act (see Schedule 1 to the 200 Act). Thus, the torts of champerty and maintenance are preserved in Irish law.

In the English case of i es v ho son (1993), Lord Steyn gave a succinct definition of the two torts. He said that maintenance is the support of litigation by a stranger without just cause while champerty is an aggravated form of maintenance where the stranger offers support in return for a share of the proceeds of the litigation.

Recent Irish Law

The Supreme Court was asked to consider these issues in the important case of ersona igita e e hony v he inister or ub ic nter rise (201 ). In rejecting Persona’s claim that their funding arrangement with an unconnected party (Harbour III Partnership) was founded in the public good and should be exempted from the relevant torts, Denham CJ made two important findings. Firstly, that champerty and maintenance remained as torts

in Irish Law and were subject only to very limited exceptions which had emerged through earlier case law. The Courts were therefore bound to follow the Statutory rules. But secondly, she noted that in this case Persona had not sought to challenge the legislation on constitutional grounds in that it restricted their right of access to the Courts; she found that had such a constitutional challenge been made, and had it proved successful, the Courts would have no option but to overturn the legislation. otably, Clarke J. (as he then was) commented that the increasing complexity of modern litigation might in a future case lead to a situation where the courts had to revisit the rules on champerty if the absence of third-party funding impacted upon a party’s constitutional right of access to the courts.

Subsequently in the case of SPV Osus Limited v HSBC (201 ), the Supreme Court called for “urgent re or in this area so that the right o access to the ourts can be rendered e ective in a ractica sense

As of the time of writing, no legislative changes have been effected.

itigation unding hich i be er itted by the ourts ivi a isce aneous rovisions i

The Courts Civil Law (Miscellaneous Provisions) Bill 2022 is currently being debated by the Oireachtas and was last before the Dáil at Committee Stage in ovember 2022. Section 9 of this Bill will insert a new provision into the Arbitration Act 2010 to disapply the prohibition on maintenance and champerty and permit thirdparty funding solely for international commercial arbitrations governed by Irish law. It also provides that the Minister for Justice may prescribe criteria, including criteria relating to transparency in relation to funders and recipients, for third-party funding contracts. This legislation will revolutionise the Irish law on third-party funding. It is not apparent why it has been decided that third-party funding should be permitted solely for international commercial arbitrations.

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itigation unding and the e resentative ctions or the rotection o the o ective nterests o onsu ers i

The General Scheme of this Bill was published in March 2022. Its purpose is to transpose into Irish law Council Directive (E ) 2020 1 2 of 2 th ovember 2020 on representative actions for the protection of the collective interests of consumers. Head 9 of the Bill envisages the court satisfying itself about the funding of the action or any other conflicts of interest which may arise. While it does not expressly disapply the rules on maintenance and champerty, it appears to broaden the category of funders who can assert they have a legitimate interest in funding litigation designed to vindicate the collective interests of consumers via a representative action.

t as i ited v avid e y and rs the a icants

The plaintiff, Atlas GP Limited, was a developer who had successfully received planning permission for a new development in Killiney, County Dublin. A group of residents (the J applicants) sought to challenge this planning permission by means of judicial review. The J applicants had circulated flyers seeking contributions towards their legal costs from local residents. In turn the plaintiff brought these plenary proceedings in which it sought a declaration that the actions of the JR applicants were champertous and also claimed damages as a result of their tortious behaviour. The defendants applied to strike out the plaintiff’s plenary action as being bound to fail and on grounds that they had been brought for an improper purpose of harassing the JR applicants as strategic litigation against public participation (“SLAPP”).

Egan J. noted that while the law relating to champerty and maintenance undoubtedly still existed in this area, it must not be extended in a way which deprives people of their constitutional right of access to the Courts. She referred to the judgment of Hogan J in Greenclean Waste Management v. Leahy (2013) extensively, in a case where after the event (“ATE”) legal costs insurance was not held to

amount to champerty. Returning to the facts before her, Egan J. held that an essential element of the torts of maintenance and champerty is that the third-party funder had no legitimate interest in the proceedings. Instead, she found abundant evidence that the residents had a legitimate interest in the issues raised and so the plaintiff had not established a stateable case of maintenance and champerty. The plaintiff’s proceedings were therefore struck out as being bound to fail, and in those circumstances the court did not need to rule on the SLAPP arguments in the case.

The judgment is important in that Egan J. recognised the law of champerty and maintenance must be viewed in accordance with modern ideas of propriety and in recognition of the fact that access to justice is a constitutional fundamental.

Egan J. also agreed with Hogan’s J. observation in Green Clean that when the torts were initially developed diverse concepts such as legal aid, representative actions, pro-bono work, no foal no fee, litigation in community and voluntary groups and trade organisations all lay far into the future.


The ancient torts of champerty and maintenance have a precarious continued existence in Irish law. The question of what amounts to a legitimate interest on the part of a third party funding someone else’s litigation is not well defined. The Government has been very slow to bring Irish practice on legal funding arrangements in line with modern developments elsewhere. Two piecemeal statutory incursions into the rules set out in the 1 34 Act now look likely to pass into law. A constitutional challenge on grounds that the rules may prejudice a party’s constitutional right of access to the courts may yet be brought. In a recent written answer, the Minister for Justice continued to express considerable reservations relating to third arty itigation unding without offering any specifics. She noted that the Law Reform Commission is working on a discussion paper on the matter. Sun T u had it right –the hee s o ustice grind e ceeding y s o

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When the torts were initially developed diverse concepts such as legal aid, representative actions, probono work, no foal no fee, litigation in community and voluntary groups and trade organisations all lay far into the future
Gavan Carty is the managing partner at Kent Carty Solicitors

The Judges’ Rules

DSBA President Susan Martin scrutinises the Judges’ ules which are a non-statutory statement of guidelines for police in taking statements from suspects

The right to silence and the right against self-incrimination are well established in law. A Special Criminal Court case reported in the Irish Times recently (Irish Times, th ovember 2022 – “Interviews in Regency trial should be ‘inadmissible’ due to lack of cautions”) brought to mind the importance of the Judges’ ules [ the ules’] when considering the statement of an accused.

In that case (DPP v Bonney), the Gardai had called to the residence of the accused to question him as part of their investigation into the shootings at the Regency Hotel in 2016. The accused voluntarily offered a statement to the Gardai who did not administer the caution before taking the statement. The party making the statement was later charged. At trial, the defence sought to exclude the statement on the basis that the caution was not administered.

The Judges’ ules are a non-statutory statement of guidelines for police in taking statements from suspects. While the ules have no force of law, they are administrative directions to be observed by police officers and it is likely that a statement could be excluded by a Court in the event of a breach of the Rules. In all cases, the Rules were intended to “ensure fairness while also not acting to hinder an investigation”

o ice o ers in re and, arnet range, oo sbury

O’Higgins CJ in the People v Farrell said: “The Judges’ u es are not ru es o a hey are ru es or the guidance o ersons ta ing state ents o ever, they have stood u to the test o ti e and i be de arted ro at eri n very rare cases a statement taken in breach may be admitted in evidence but in very exceptional circumstances ”

While the rules of procedure for taking statements from suspects/those in custody are now well established, this was not always the case. T.E. St. Johnston in his article, The Judges’ Rules and Police nterrogation in ng and oday ri ri ino ogy

o ice ci says that one of the primary functions of the police is to investigate crimes

brought to their notice and wherever possible to bring the perpetrator before the courts together with all the relevant evidence. He goes on to say: “The methods used in the interrogation of suspected persons and the value of evidence thus obtained has long been the subject of comment, both judicial and otherwise, and perhaps it will ever remain so ”

In the late 19th Century and early 20th Century there was a lack of consistency regarding the taking of statements from suspects – some courts would exclude statements which another court in nearly identical circumstances would accept. Accordingly, many Chief Constables wrote to the Lord Chief Justice asking for a ruling, to clarify the circumstances in which a caution should be used.

The then Home Secretary (Winston Churchill) requested the Judges of the King’s Bench to provide guidelines for police forces in the taking of statements to avoid them later being ruled inadmissible by the Court. These Rules were developed in 1912 and confirmed in the case of R v Voisin [191 ] 1 B 31. There are nine rules, set out below:

1.When a police officer is endeavoring to discover the author of a crime, there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not, from whom he thinks that useful information can be obtained.

2.Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking any questions, or any further questions as the case may be.

3.Persons in custody should not be questioned without the usual caution being first administered.

4.If the prisoner wishes to volunteer a statement, the usual caution should be administered. It is advisable that the last two words (i.e., against you’) of the usual caution should be omitted and end with the words “be given in evidence”.

. The caution to be administered to a prisoner when he is formally charged, should be in the following words:

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“Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence”

6.A statement made by a prisoner before there is time to caution him is not rendered inadmissible in evidence merely by reason of no caution having been given, but in such cases, they should be cautioned as soon as possible.

7. A prisoner making a voluntary statement must not be cross-examined, and no questions should be put to him about it except for the purpose of removing ambiguity in what they have actually said. For instance, if he has mentioned an hour without saying whether it was morning or evening, or has given a day of the week and a day of the month which do not agree, or has not made it clear to what individual or what place he intended to refer in some part of his statement, he may be questioned sufficiently to clear up the point. .When two or more persons are charged with the same offence and statements are taken separately from the persons charged, the police should not read these statements to the other persons charged, but each of such persons should be furnished by the police with a copy of such statements, and nothing should be done by the police to invite a reply. If the person charged desires to make a statement in reply the usual caution should be administered.

9.Any statement made in accordance with the above rules should, whenever possible, be taken down in writing and signed by the person making it after it has been read to him and he has been invited to make any corrections he may wish.

The central point that the Rules make is that confessions must be obtained freely and voluntarily and that statements taken in breach of the rules may well be rendered inadmissible.

This point has been considered by the Irish

Courts and in particular by O’Higgins CJ in People v Farrell [19 ] I 13. In that case, the Appellant had been convicted of certain offences by the Special Criminal Court. Most of the evidence used to convict the Appellant was contained in a statement of the Appellant which was taken in breach of the Rules.

In considering of the Judges’ Rules, the Court found that the Rules were not rules of law, but guidance for persons taking statements. The then Chief Justice went on to say that the Rules had stood u to the test o ti e and i be de arted ro at peril”.

The Court went on to note that failure to implement the rules was not in every case conclusive – “In very rare cases a statement taken in breach may be admitted in evidence but in very exceptional circu stances here there is a breach o the ru es each of such breaches calls for adequate explanation……Breaches and the explanations together with the entire circumstances of the case are matters to be taken into consideration by the Trial Judge before exercising judicial discretion as to whether or not to admit such statement in evidence”

The analysis of the Court shows that while the Rules do not have the force of law, failure to follow them can result in the inadmissibility of evidence. The onus rests on the prosecution to prove compliance with the Rules.

It is worth noting that the Rules came from a time before there were statutory powers to arrest a person for pre-charge investigation. The Criminal Justice Act 19 4 and related Treatment of Persons in Custody egulations are one of four examples of statutory provisions that allow the Gardai to arrest and detain a suspect for questioning before they are charged with a criminal offence. If the circumstances demand an investigator depart from the protection of these provisions and question a suspect then the failure to strictly comply with the Judges’ Rules puts the integrity of the investigation into question.

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The central point that the Rules make is that confessions must be obtained freely and voluntarily and that statements taken in breach of the rules may well be rendered inadmissible
Susan Martin is principal at Martin Solicitors She is President of the DSBA

The Employment Investment Incentive Scheme – LOOKING TO THE FUTURE

TheEmploymentInvestmentIncentiveScheme(EIIS)isataxrelief incentiveschemewhichprovidessmallandmediumenterprises withearlystageand orgrowthfundingandqualifyinginvestorswith incometaxrelief. ristoferO’SheaexaminestheScheme

EstablishedundertheTaxes Consolidation Act 199 ,thescheme allowsqualifyinginvestors to avail ofincometaxreliefforinvestments throughsharesubscriptionsincertain qualifyingsmallandmediumsi ed tradingcompanies.

CompaniesseekingEIISreliefmustseek clarificationfrom evenue,taxadvisorsandlegal advisorsthattheyqualify.Thereareguidelineson the evenuewebsitewhichoutlinehowacompany qualifies.Importantly,itisaself-certifyingprocess wherebythecompanyissuesitsownstatementof qualification.

InvestmentsmadeundertheEIISaresubject to theGeneralBlockExemption egulation(GBE ) whichdealswithstateaid. ndertheGBE ,the cumulativeEIISinvestmentisnow 1 m.

EIIS for the Investor

Anindividualcaninvestup to 2 0,000inany oneyear.Thishastraditionallybeendonethrough aprivateplacement(whereanindividualinvests ontheirown)orthroughadesignatedinvestment fund(whereanumberofindividualsinvestinafund whichthenchoosescompanies to investin).

What are the positives for the investor?

Thereisataxreliefofup to 40 onthe investmentamount.

Thereisalsopotentialforadditionalcapital returnonexit.

In usingadesignatedinvestmentfundforthe EIIS,itcanbepossible to gainaccess to larger andmorestablecompanies.

What are the negatives for the investor?

Thereisaminimumfour-yearholdingperiod. Thereisanequityriskfortheinvestor, as it ranksbehindmostdebtinthecompanyunless explicitlystatedotherwise. If thetransactionispoorlystructured,itcould resultinlossoftaxrelief.

It isaninvestmentrisk as therecanbeno guaranteedreturn. Investorscannotbeexistingmembersofa companybeinginvestedin.

EIIS for the Company

Acompanycanraiseup to 1 minequitycapital undertheEIISsubject to alimitationof min any12-monthrollingperiod. It isimportant to notethatthis 1 mlimitincludesallcompanies withinthegroup.

Therearerestrictionsonthetypesoftrade thatacompanycancarryoninorder to access thescheme.Mosttradesdoqualify–itisoften professionalservicesthatdonotqualify.

What are the positives for the company?

Thereisacompetitivecostoffunding. Thereisequity,notdebt,onthebalancesheet. Canact as me aninefinanceinaddition to seniordebt.

Therewillbeanagreeddefinedexitmechanism whichwillnothaveaguaranteedbottomprice.

What are the potential negatives for the company?

It istypicallyprescribedthroughpreference shares,whichwillrankabovemostothershares intermsofrights(oftenincludingsharesheld

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EIISinvestorscouldaskforfullequityupside as opposed to acappedreturn.

Therightstypicallydemandedbyinvestorscan besubstantial.

Thecompanyisrequired to repay evenue, shoulditbecomenon-qualifying.

The Finance Act 2019

TheFinance Act 2019introducedsomechanges to theEIIS

Aninvestor’sinvestmentsarenowtreated as a deductionfromthequalifyinginvestor’stotal incomeforthetaxyearofthesharesubscription. Themaximuminvestmentbyaqualifying investorisnow 2 0,000. Somerequirementshavebeenremoved,such as “ ualifyingEmployees”and“ esearchand Development”.

The Future of the EIIS

Plans to reformtheEIIS to giveitgreaterfreedom wereconfirmedinlastyear’s2022budget.These planshavebeenbroadlywelcomed.TheMinister forFinancehaslaudedthepotentialoftheEIIS, whichmightsuggestthatitishere to stayforthe foreseeablefutureinsomeiteration.Asofnow,it hasbeenextended to 2024anditisexpected to be extendedfurther.

Asubstantialchangeisthedroppingofthe requirementthatacompanyraisingEIISfunds had to spend30 ofthefundsbeforeitcould issueastatementofqualification.Thisisinline withtheself-certifyingapproachmentionedabove. Previously,acompanyhad to waituntil30 of

theEIISinvestedfundswerespentbefore issuingtheirstatementofqualification. ow, forinvestmentsfrom1stJanuary2022onwards, thestatementofqualificationcanbeissued immediatelyaftertheinvestmentismade.Thisis relevantfortheinvesteecompanybecauseitwill reducethepressure to deployfundsinvested as quickly as possible.Fromaninvestor’s perspective,earlierconfirmationofqualification willassistinfinancialplanning.

Anotherpositivechangeistheintroductionof greaterflexibilityaroundthecapitalredemption window investorscanredeemcapitalafterthe minimumfour-yearholdperiodevenwhere theinvestormayhaveparticipatedinafollowonfundingroundwiththesamecompanyin subsequentyears.Previously,ifafollow-on investmentwasmade,theinitialinvestment couldnotbetakenoutuntilthefollow-on investmenthadpassedthefour-yearholding period. ow, investorswithanumberof investmentsinacompanyovermultipleyears mayredeemaninvestmentforayearthatis outsidethecomplianceperiod.

In summary,inaddition to afewtechnical amendments,the2022budget’smainchanges areaimedatencouraginggreaterinvestmentby relaxingtherulesrelating to EIISinvestments andbroadeningtherangeofinvestmentfunds thatcanprocureEIISinvestments. It isexpected thatfurtherguidelinesontheEIISwillbe issuedinthenearfuture.Consequently,the EIISshouldbewatchedcloselybyboth investorsandcompanies as itisset to haveavery interestingfuture.

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Kristofer O’Shea is an associate solicitor at LK Shields LLP
Asubstantial changeis thedropping of the requirement that a company raisingEIIS fundshad to spend30 ofthefunds beforeit couldissuea statement of qualification

Data Breach Claims Update

Laura Fannin and John Deignan review recent developments regarding Data Protection breach litigation

Since the implementation of the General Data Protection egulation (“GDP ”) in May 201 , national courts in E Member States have been grappling with a vexed question what is meant by non-material damages for individuals who suffer a personal data breach While there is not yet a definitive answer to this question, it appears that the issue is coming to a head in light of recent developments.


By way of brief overview, Article 82 of the GDPR, and section 11 of the Irish Data Protection Act 201 (DPA), introduced a new right to compensation for individuals, namely a right to seek compensation for “non-material damage”. The difficulty with Article 2 is that it does not define what is meant by “nonmaterial damage”. While Article 2 has given rise to a number of data protection claims seeking damages as a result of breach of individuals’ data protection rights, there has not yet been any written decision of the Irish courts on this issue.

Recent Developments

Ireland is not the only country to grapple with the issue of damages for non-material loss in the context of data breach claims. In fact, this issue has come before the courts in a number of other EU Member States, and this has led to a number of cases being referred to the Court of Justice of the European nion (“CJE ”), pursuant to a process known as a “preliminary reference”. The preliminary reference procedure is used when a national court or tribunal refers a question of EU law to the CJEU for a preliminary ruling in order to facilitate the national court, upon receiving that ruling, to decide the case in question.

The recent case of UI v Österreichische Post AG (the “Austrian Postal Worker’s Case”) is one such case

which has garnered quite a bit of media attention in light of an opinion delivered by the Advocate General of the CJEU in October 2022. The Advocate General’s opinion, although not binding on the CJEU, is followed in a majority of cases. In this case, the Austrian Supreme Court availed of the preliminary reference procedure and referred the question of the right to compensation under Article 82 to the CJEU.

The background to the Austrian Postal Worker’s Case is that the Austrian Postal Service used an algorithm to determine whether individuals had an affinity to a particular political party. Pursuant to the algorithm, the applicant, I, was categorised as having an affinity to a far-right populist party and he was “angered and offended” by this. Accordingly, I sought 1,000 in compensation for non-material damage arising from the processing of his personal data in this way.

The Austrian Supreme Court then referred a number of questions to the CJE seeking clarification on a number of issues, including i) whether the award of compensation under Article 82 requires, in addition to an infringement of the GDPR itself, that the claimant has suffered harm and ii) in order to award compensation for non-material damage, must there be more than upset caused to the individual by the infringement?

The Advocate General held, among other findings, that i) mere infringement of provisions of the GDP in the absence of corresponding damage (be that material or non-material) is not sufficient to merit an award of compensation ii) the breach must be accompanied by material or non-material damage and iii) the GDP does not allow compensation for “mere upset” or “vague, fleeting feelings or emotions connected with the infringement of rules on processing”.

Recent Circuit Court Decision – Cunniam v Parcel

Connect Limited & Ors

In his judgment of 23rd January 2023, Judge John

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O’Connor of Dublin Circuit Court acceded to the defendants’ request that the proceedings (which arose from a data breach) be stayed or paused pending the outcome of a number of preliminary references before the CJE (including the Austrian Postal Worker’s case referred to above) which deal with the same issue, that is to say the question of damages for non-material loss or damage.

The background to the case is that in or around February 2021, the defendants suffered a data breach resulting in the personal data of over 450,000 people being compromised, including the plaintiff’s. In these proceedings, the plaintiff claims, among other things, that he has suffered apprehension arising from the interference with his personal data. The plaintiff does not claim that the interference with his peace and privacy and concern over the unauthorised use of his personal data caused him to suffer any physical injury. Accordingly, the plaintiff’s claim is confined to “mere upset” or “subjective feelings of displeasure”.

In light of the preliminary references made to the CJE regarding non-material damage, the defendants brought an application seeking to stay the proceedings on the basis that the CJEU’s ruling would clarify this issue.

In their application to stay the proceedings, the defendants also argued that a) the plaintiff’s claim was low in value and if the Advocate General’s opinion in Austrian Post is followed, the plaintiff will not be entitled to any compensation b) if the proceedings simply continue pending the CJEU’s decision, unnecessary legal costs will be incurred in the interim and c) pending clarification from the CJEU, the defendants are not in a position to make a lodgement (i.e. to lodge money in court in an attempt to settle the claim) as it is currently impossible to quantify the value of the claim.

The defendants also argued that the proceedings

ought to be stayed on the basis of a duty of “sincere cooperation”, which is enshrined in E law by virtue of Article 4(3) of the Treaty of the Functioning of the European Union. In this regard, the Court also had regard to the need to avoid “irreconcilable judgments” emanating from different Member States.

In reaching his decision, Judge O’Connor considered a number of points in the context of the application to stay the proceedings including whether any party would be prejudiced by a delay, and the procedural efficiency of the proceedings.

Judge O’Connor held that while there would be no risk of prejudice to the plaintiff, if the application for a stay were refused there may be a risk of prejudice to the defendants as the costs incurred in preparing the case for hearing could exceed the value of the claim, given that the claim is low value coupled with the fact the plaintiff may not be entitled to any damages. In light of the foregoing, and in particular the principle of sincere cooperation, Judge O’Connor made an order staying the proceedings.


Taken by itself, the decision of the Circuit Court in Cunniam is certainly not a landmark decision in what was, after all, a procedural application. However, the significance of the decision lies in the fact that courts are now reluctant to allow data breach claims for non-material damage to proceed in the absence of clarification from the CJE . While this is certainly not the death knell for data breach claims, if the Advocate General’s opinion in the Austrian Postal Worker’s Case is followed, then it is likely that some sort of de minimis (i.e. minimum) threshold will have to be reached in order to be awarded damages in claims of this nature. Such an approach would undoubtedly be welcomed by organisations defending these claims, in particular.

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If the application for a stay were refused there may be a risk of prejudice to the defendants as the costs incurred in preparing the case for hearing could exceed the value of the claim
Laura Fannin is a partner in the Commercial and Business team at Hayes Solicitors John Deignan is an associate solicitor in the Commercial & Business team at Hayes Solicitors

Security for Costs –Foreign Limited Companies

There has been some uncertainty in recent years regarding the principles that should apply when seeking security for costs against a foreign company that is outside the reach of section 2 of the Companies Act 2014 and in particular whether applications should be determined by reference to the Companies Act criteria or the criteria applicable to applications brought under Order 29 of the ules of the Superior Courts. A recent High Court judgment has provided significant clarity on the topic in a manner which ensures that Irish companies and those incorporated outside Ireland are on an equal footing.

In this case, Be-Spoke Capital AG v. Altum Capital Management LLC [2022] IEHC 24, the plaintiff against whom security was sought was a limited liability company incorporated in Swit erland. A key issue which arose for determination was the test which should apply when security for costs is sought against such a foreign limited liability company. The defendant applicant argued that the court should decide the application by reference to the criteria which govern applications brought under section 2 of the Companies Act 2014 (the “Companies Act”) against an Irish limited liability company. These criteria focus on the inability of a plaintiff to meet an order for costs against it if it were unsuccessful in the proceedings, usually referred to in the case law as the plaintiff’s impecuniosity’ (the “Section 52 Criteria”). In this case, the plaintiff argued that since the Companies Act does not apply to foreign companies, the relevant

criteria should be those applicable to an individual plaintiff resident outside the jurisdiction under Order 29 of the Rules of the Superior Courts. This test focuses on the difficulty in enforcing an award of costs in foreign jurisdictions, primarily those outside Europe and therefore outside the scope of the Brussels I ecast egulation (the “Order 29 Criteria”).

The significance of the applicable test was twofold. First, if the Section 2 Criteria were applied, once a prima facie defence had been made out by the defendant, the plaintiff’s admitted impecuniosity would be enough to establish the defendant’s entitlement to an order for security (in the absence of special circumstances justifying refusal). However, if the Order 29 Criteria (focusing on difficulty in enforcement) were applied, security would not have been ordered, as the plaintiff in the case was based in Swit erland which is a party to the Lugano Convention providing for easier enforcement of judgments from certain European jurisdictions. Second, once a decision was made to grant security, the amount of security granted by reference to section 2 would ordinarily be expected to significantly exceed that which might be granted under Order 29.

Decision of the Court

Having reviewed the relevant case law, O’Moore J granted the application for security in the case. The Court concluded that, in deciding an application for security for costs involving a foreign limited company as plaintiff, it was proper to take into account the

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A recent High Court judgment has provided significant clarity on the issue of security of costs in a manner which ensures that Irish companies and those incorporated outside Ireland are on an equal footing. Catherine Derrig and Patrick Longworth assess the position

factors which must be considered in an application against an Irish limited company under section 2 of the Companies Act, notwithstanding that the Companies Act does not apply to foreign companies.

The Court agreed with the certain obiter comments expressed in previous decisions to the effect that foreign limited liability companies bringing proceedings in Ireland should be treated in the same way (by having the same criteria applied on applications for security for costs against them) as Irish companies. If the Order 29 Criteria were to apply that would mean foreign companies would be able to litigate in Ireland on more favourable terms than Irish companies.

Applying the Section 2 Criteria, the court noted that the plaintiff accepted it was impecunious and that it would not be able to pay the defendant’s costs in the event that the proceedings were successfully defended and the defendant was awarded its costs of the action. O’Moore J was also satisfied on the facts that the defendant had established a prima facie defence to the substantive action.

The Court then went on to consider whether the plaintiff could establish any special circumstances which would justify the Court in exercising its discretion not to grant the order for security. It also held against the plaintiff here, finding that the plaintiff had failed to demonstrate that its inability to pay the defendant’s costs flowed from any wrongdoing on the part of the defendant. The Court was also not satisfied that the substantive case concerned a point of law of exceptional public importance that needed to be

resolved by the Court such as would justify refusing the application for security.

Following the rationale set out earlier in the judgment, rather than following the Order 29 practice of granting security for one third of the defendant’s anticipated party and party costs, the Court granted security for the full amount of the defendant’s estimated costs in line with the approach usually taken under section 2 of the Companies Act.


This decision provides a useful clarification on the applicable principles for security for costs applications. Of particular interest is O’Moore J’s view that treating a foreign limited liability company plaintiff in the same way as an Irish limited company would be treated was an acceptable development of the case law in the area, notwithstanding that such foreign companies do not come within the scope of section 2 of the Companies Act (which applies to Irish companies only). O’Moore J rejected the plaintiff’s submissions to the effect that legislative intervention was required or that following this approach would constitute an overreach which could violate the separation of powers.

The decision clarifies any uncertainty regarding the basis on which defendants can bring an application for security for costs against foreign limited liability companies, particularly those based in Europe (more specifically, in countries in the E governed by Brussels I ecast ( egulation (E ) 121 2012), or the Lugano Convention).

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Catherine Derrig is a partner in the Disputes Department in McCann FitzGerald Patrick Longworth is a senior associate in the Disputes Department in McCann FitzGerald and a member of Council of the DSBA
If the Order 29 Criteria were to apply that would mean foreign companies would be able to litigate in Ireland on more favourable terms than Irish companies


The DSBA are hosting two social events for colleagues in May and June. Please put dates in your diary and come along on the evening to meet colleagues (old and new) in a social setting. Are a re welcome.

pm to pm 4th May, 2023, Peggy elly’s, Harolds Cross, Dublin

W Social event for Southside

So icitor

pm to pm 15th June, 2023, The Bank, Dame Street, Dublin 2 Social event for North i e So icitor


Practitioners please note the following in relation to motions before the Dublin County egistrar

1. Attend in court at the appointed designated time as there are no waiting facilities.

2. There will not be a second call due to the staggered lists.

3. The parties must leave Court and remove all items at the expiry of the allotted time.

4. The moving party must have in Court to hand in to Court a complete indexed and


The DSBA Property Committee wishes to draw members’ attention to the green lease clauses recently published by The Chancery Lane Project. The Chancery Lane Project Irish working group included onan McLoughlin and oisin Bennett from the DSBA Property Committee.

Green lease clauses have become particularly relevant in Ireland as the government seeks to implement Climate Action Plan 2023 and also as landlords and tenants wish to reflect


1. The Supreme Court – ideo technology is now being installed in the Supreme Court which will allow for remote hearings.

2. he Sta pin o ce -– Technology is now in place which allows payment by way of card payment. This is in addition to client account cheques and cash payments. Practitioners will be aware that documents can in fact be stamped in the Law Society office at the Four Courts with a small surcharge. The Law Society office is open during lunchtime, so the hours are more favourable. The stamping office in the Four Courts is open from 10 00am to 4 00pm and closed 12 30pm to 1 30pm.

3. he entra ce –

a.In the High Court Central Office, there are three queues running parallel with each other. The first is the normal 10-minute slot booked online. The second is what’s called an express queue in which people are given a -minute slot and it only applies to certain quick short matters. The third queue is an urgent queue, but it’s accessed by the Dublin civil law e-mail. The office is considering a separate email with the word urgent in it. Emails are being monitored constantly and if a matter is deemed urgent, the urgent slot will be given.

b. sually people with appointments are called a second time and given a second chance and very quickly the five tenminute vacant slot can pass. The best way of allocating any vacant slots is for people to cancel their appointments. What tends to happen with the cancellations is that they are given to urgent appointments.

c.If there is an issue causing distress, there is a supervisor who was always present in the central office and practitioners are encouraged to ask for the supervisor so that the matter can be dealt with.

d.There are arrangements to install a digital totem. This is a device which will be placed somewhere outside the Central Office in which people can digitally book appointments there and then. They will not need a mobile phone or a computer to do this.

e.For those who use the list room, this is now closed on Mondays and Tuesdays from lunchtime. This was due to staff shortages and if the office happens to be closed on either of those afternoons, the Central Office will take any documents.

Barra O Cochlain, DSBA Litigation Committee

paginated book of pleadings and proceedings for the hearing of the motion application.

. Where the espondent to the motion is a litigant in person the moving party must inform the litigant in person of the hearing date and time.

. Where the motion has been assigned a new hearing date, the moving party must notify the espondent to the motion of the new hearing date and time and proof of same will be required.

their corporate environmental, social and governance policies.

The Law Society has published useful commentary on the clauses in recent issues of the Gazette and in e ines issued to the profession. For further detail please see https news news.

The draft clauses can be found at https jurisdictions ireland.

60 the Parchment
DSBA Property Committee

New Circuit Court Judges Appointed

The Parchment extends its congratulations to Simon McAleese, Eli abeth Maguire SC and Geoffrey Shannon SC on their recent nominations by the Government to the Circuit Court bench.

Simon McAleese is one of Ireland’s leading defamation and media law solicitors. He represented the interests of the Independent ewspaper Group for many years. Formerly a partner in Mathesons, Simon established

Simon McAleese Solicitors in 2002.

Solicitor Dr. Geoffrey Shannon SC is a native of Galway and has worked for many years at Blackhall Place as the deputy Director of Education. Countless law students have benefited from his knowledge and guidance. He chaired the Adoption Authority of Ireland from 200 -20, and was appointed a senior counsel in 2020.

Dr Shannon was also Special apporteur on

Child Protection for the Irish Government from 200 -19. His independent report into historical child sex-abuse allegations in St John Ambulance was launched recently. Eli abeth Maguire SC is a native of County Mayo and is leading family law practitioner. She is co-author of the Irish Family Law Handbook which has been a much referenced book for family lawyers, now in its sixth edition.

Upcoming DSBA Seminars for your Diary

The DSBA CPD programme continues this year with a varied range of seminars from our committees. The following is a list of the upcoming seminars. As ever, further details, including additional seminars and booking form can be found on our website at seminars upcoming-seminars or to express your interest, please contact the DSBA offices at (01) 0 0 9 (maura

24th April 2023

Property Law Committee

In-Person Seminar – adisson Hotel Golden Lane ocus on esidentia ro erty esidentia Tenancies, First Home Scheme and Residential Property Taxes”. Speakers include Úna Cassidy BL, ennifer in ichae ro eric (CEO of First Home Scheme) and Deirdre Fahy (Office of the evenue Commissioners).

18th May 2023 (afternoon)

o ercia a o ittee

Webinar - Annual Commercial Litigation pdate

Experienced practitioners will give the benefit of their knowledge on recent developments in commercial litigation.

23rd May 2023 (3.00pm - .00pm)

Probate and Tax Committee Webinar – Administering the estate – It ain’t over till it’s over Chair: Patricia Hickey (General Solicitor for Minors and Wards of Court) Speakers include Anne Stephenson (Stephenson Burns Solicitors), Brian ro eric (Associate Director with TA) and a raic o rtney (Law Society’s Law School).

30th May 2023

Family Law Committee

Webinar – Section 4 assessments and forensic accountant cost accountant issues in Family Law proceedings

31st May 2023 (provisional date) o ercia a o ittee

In-Person Seminar - Launch of the new DSBA specimen Asset Purchase Agreement (APA). This new 2023 edition suite of precedent documents includes the APA, disclosure letter, deed of assignment of Business Intellectual Property, and a Transfer of ndertakings (Protection of Employment) egulations (T PE) letter in respect of business employees.

13th June 2023

ractice ana e ent o ittee Webinar

“ egulation and Practice Management” –Please check DSBA website for further details.

5th July 2023

ractice ana e ent o ittee

“ egulation and Practice Management” –Please check DSBA website for further details.

Paul Ryan, Chairperson of the DSBA Commercial Law Committee and DSBA Programmes Director.

In Practice / News Spring 2023 the Parchment 61
Elizabeth Maguire Geoffrey Shannon Simon McAleese

Jeanne Cullen – A TRIBUTE

The legal community lost one of its brightest lights on 11th December 2022. Jeanne Cullen formerly of Margetson and Greene Solicitors passed away after a brave battle with a long illness

Jeanne qualified in 19 2 after completing her law degree at UCD. She took up her apprenticeship at Margetson and Greene Solicitors on Baggot Street – a firm where she committed the next 40-plus years of her legal life. Her father Don Cullen was already a partner in Margetson and Greene when Jeanne joined the firm and shortly thereafter she began making a name for herself as an impressive and formidable solicitor. In the years that followed, Jeanne became one of the most respected Conveyancer and property experts in the country.

She was appointed for two successive terms as a member of the Solicitors Disciplinary Tribunal and her experience and insight was an immense asset to that aspect of the profession.

Away from the law and from an early age, Jeanne was a vital team player for Pembroke Wanderers Hockey Club, where years later she became President of that club.

Jeanne undertook her hockey coaching badges and she went on to coach Irish teams at international level. A successful yachtswoman, Jeanne was a lifelong member of the Royal St. George Yacht Club in Dún Laoghaire.

Added to that, Jeanne was a former Lady Captain at Greystones Golf Club and she enjoyed a passion for gardening and was a talented artist when she took up the paint brush in more recent years.

Managing Partner at Margetson and Greene

Ciaran Kirwan recalled his great friend and former partner to the Parchment:“She was a wonderful mentor to many generations of trainees and solicitors who passed through the fir over the years he as a great co eague and artner eanne had an un ara e ed or ethic hich usua y ani ested itse as her being first in and ast out

Recalling her expertise in the law, Ciaran added: s any co eagues ou d no , eanne had a s ecia ity in conveyancing and acted or any deve o ers and bui ders over the years he as great y sought a ter or her or a ritten conveyancing o inions and as an e ert or ro erty itigation atters

Editor of the Parchment and Principal of J.V. Geary Solicitors John Geary worked as an assistant solicitor under Jeanne at Margetson and Greene soon after he qualified.

had the rivi ege o or ing a ongside eanne u en and earning ro her he as an e traordinary erson and so icitor he as a o erhouse and had an a a ing energy and oie de vivre or the a here as nothing

that she did not no about conveyancing and y ti e or ing under eanne has been a cornerstone in y o n career

Jeanne is deeply mourned by her devoted husband Des Thorpe who cared for her at home in her last years and was a pillar of support and love as she battled with her illness. he arch ent extends its sympathies to Des and her sisters Susan, Judy and Nicky; the wider legal community and those who knew her, who will feel her loss greatly. Ar dheis Dé go raibh a hanam. P

62 the Parchment An Appreciation


DSBA Annual Dinner and Law Book Awards

The DSBA held its Annual Dinner and Law Book Awards at the Westin Hotel on the 17th February 2023. Guest of Honour was the Attorney General Rossa Fanning S.C. The winners of the Law Book Awards were announced on the night –see full details on pages 6-7 of this edition.

the Parchment 63
Photography: Owen O’Connor Left: Attorney General Rossa Fanning & Susan Martin, President, DSBA Far left: Keith Walsh, Emma Meagher Neville (President, Southern Law Association) & Barry MacCarthy Left: Paul Egan, Attracta O’Regan & Daragh Hogan Far left: Gayle Ralph, Mary Keane & Fiona Cullen Left: David Higgins, Keith Walsh, Yvonne Chapman & Ken Murphy Right: Padraig Lyons, Patrick Bardon & Michael Devitt Far right: Cora Fitzsimons, Norah Comey, Nicola Hand and James McMahon

DSBA Annual Dinner and Law Book Awards

Tony O’Sullivan, Deirdre Walsh, Angela McCann, Latifa Masoor & Olivia McCann (President Waterford Law Society)


Brian Sugrue & Karl Dowling

Kevin O’Higgins, Emma Meagher Neville (President, Southern Law Association) & Philip Neville Far right: Kyran McGinley, Judge Mary Fahy, Margaret McGinley & Conor Fahy

64 the Parchment
Left: Gary Skinner, Diego Gallagher, Paul Ryan & Niall Cawley Far left: Alan Delany & Patrick Crowe Left: Bridget Howard, Tanya Egan, Emma McLoughlin & Aine Gleeson Far left: Sarah Wilson (Chair, Belfast Solicitors) & Caroline Cooley Right: right: Right:
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