Parchment Spring 2025

Parchment DSBA.IE

the

D UB LIN SOLICITORS B AR ASSOCIATION MAGAZ INE | SPRIN G 2025 | ISSU E 102

ANTI-MONEY LAUNDERING LEGISLATION What you Need to Know

WAGING ‘LAWFARE’ NEW INJUNCTIVE-TYPE RELIEF

The Legal Practice Productivity Solution

bl

ge

i

in g

me

Pu

nt

L e g al

sh

Le g

nting cou Ac al

Do c & M um a

ssembly t A ent n e gem na

P r a c tic e M

an

a

LEAP occupies a unique position in the legal software market as it includes traditional practice management and legal accounting attributes, document assembly and management, as well as many of the traditional legal publishing assets all in one solution.

Everything you need to run a law firm. leapsoftware.ie

LEAP IRE - Journal Ad 2023 - Print - 5mm bleed.indd 1

23/02/2023 15:22

Spring 2025 dsba.ie

From the Editor

W

elcome to the spring edition of the Parchment.

We did not have a winter Parchment due to my ill health late last year and, for the first time in 15 years as Editor, an edition was missed and not published. I’m glad to report that I have returned to rude health and such setbacks really do give some perspective on life.

In this edition, there is a focus on developments in family law with a number of articles by the esteemed Keith Walsh SC who shares his insights. I had the pleasure of meeting again with retired High Court Judge Bernard Barton and the second part of our interview is on pages 16-20. Our profession’s increasing obligations under Anti-money laundering and counter terrorist financing legislation are outlined in a comprehensive article by Susan Martin on pages 30-34.

We profile the large number of excellent nominees for this year’s DSBA Irish Law Book of the Year Awards.

It is a credit to colleagues who are authoring and publishing such superb legal books in wide and diverse

areas of law. To have such material available to assist our knowledge if we so wish is reassuring indeed.

The sad passing of District Court Judge Marie Quirke in January was acutely felt by all who knew her.

She is remembered in a heartfelt tribute on page 8. Ar dheis Dé go raibh a hanam.

The Parchment has been following the ongoing travails of the Enduring Powers of Attorney system for some time and in our next edition, we will be providing a detailed update and opinion.

Spring has sprung and the Easter break is upon us.

Enjoy the time away from Court and your busy desks

John Geary jvgeary@gmail.com

DSBA COUNCIL 2024/2025

CIARA O’KENNEDY Honorary Secretary & Chair of Employment Committee

AVRIL MANGAN Honorary Treasurer & Chair of Practice Mgt Committee

EIMEAR O’DOHERTY Chair of Inhouse Solicitors Committee

PATRICK LONGWORTH

ÁINE GLEESON Chair of Property Committee

CLIONA COSTELLO Chair of Family Law Committee

MARCUS HANAHOE Chair of Litigation Committee

ZOE HUGHES

AILEEN CURRY Chair of Mental Health & Capacity Committee

PUBLISHED BY The Dublin Solicitors Bar Association, Unit 206, The Capel Building, Mary’s Abbey, Dublin 7

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

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

All prices are correct at

time of going to press.

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

NIALL CAWLEY DSBA President

PAUL RYAN DSBA Vice President

JOAN DORAN Programmes Director

JESSICA HICKEY Chair of Commercial Law Committee

CIARA HALLINAN Chair of Criminal Committee

STEFAN O’CONNOR Vice Chair of Practice Management

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

DSBA OFFICE, T: 01 670 6089 F: 01 670 6090 E: maura@dsba.ie DX 200206 Capel Building W: www.dsba.ie ADVERTISING ENQUIRIES Sharon Hughes T: 086 871 9600

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

WHEN YOU HAVE FINISHED WITH THIS MAGAZINE PLEASE RECYCLE IT.

the Parchment 1

Spring 2025

Contents 6

DSBA AGM

10

Compensation for Criminal Injuries

The DSBA held it AGM with a changing of the guard to Niall Cawley as our new President

Too Important Not to Wait Any Longer Keith Walsh Solicitor and SC examines the proposed changes to the family law system

14

Waging ‘Lawfare’

16

A Man for All Seasons

22

Irish Law Book Award Nominees

Patrick Longworth and Sean Corcoran examine a recent Court of Appeal judgment which extended an Isaac Wunder Order for the first time to statutory tribunals and administrative bodies

Retired High Court Judge Bernard Barton discusses the Defamation Bill, the personal injuries landscape and more with Editor John Geary

The DSBA Irish Law Book Awards shortlist of nominees is out! We pore over the runners and riders

28

What’s Next for Employment Equality Legislation?

Siobhán Lafferty looks at potential new changes to the employment equality law landscape arising from a recent Government review

Dublin Solicitors Bar Association Unit 206,The Capel Building, Mary’s Abbey, Dublin 7, Ireland T: 01 670 6089 E: info@dsba.ie W: www.dsba.ie

2 the Parchment

page 16

A MAN FOR ALL SEASONS... JUDGE BERNARD BARTON

Gavan Carty examines a recent Irish High Court decision referred to the European Court of Justice

12

The record will show not just from me but from other judges, there was a willingness to dismiss cases with the full consequences, costs and otherwise, that ow from fraud or exaggeration

28

Spring 2025 dsba.ie

Contents

REGULAR FEATURES 01 Editor’s Note 04 President’s Message 58 In Practice 60 News 62 Photocall

30 30

Anti-money laundering legislation - what you need to know Susan Martin outlines the role that solicitors must play in deterring those who may use the financial system to launder the proceeds of crime

36

New Injunctive-type Relief in the District and Circuit Courts Keith Walsh SC considers new developments in the District and Circuit Courts which will benefit those subject to many forms of unwanted behaviour

40

60 years on the Statute Book

42

Chain of Distinction

46

Update on Ground Rents Entitlements

54

Time Extensions to Company Returns

Anne Marie Maher BL takes the opportunity to review the important aspects of section 117 and considers some potential future developments

42

Solicitor Peter Keane holds the prestigious Mayoral chain of Galway City. Parchment editor John Geary talks law and politics with him

Ruth Cannon BL assesses the law and procedure on the purchase of ground rents and various issues

William Dunne BL assesses a recent Court judgment which shows the narrow operation of extensions of time for Company Returns

46 the Parchment 3

Message from the President

Challenges to Navigate

W

elcome to our spring addition of The Parchment and to this, my first message as the as the newly elected President of the Dublin Solicitors Bar Association.

My sincere thanks to my predecessor Matthew Kenny whose focus and dedication to the Association are very much appreciated and, like so many of his predecessors, he has generously agreed to continue to contribute to the Association as immediate Past President.

This year the Association continues to maintain a robust programme of education and representation, while at the same time focusing on promoting collegiality among our members. Our Annual Dinner at The Westbury on the 9 May and our Annual Conference in Rome on 18 September will be opportunities for members to support the Association.

As President of the Association, I am very aware of the many current challenges our members navigate in the course of practice, including restricted access (in terms of opening hours and the need for an appointment) to the Family Law Circuit Court Office in Dublin. Such restricted access does not make provision for colleagues in emergency situations and gives rise to access to justice issues.

The recent attacks on Section 32 Accessors and other professionals are of even greater concern. These attacks, whether physical or verbal, whether on our colleagues or Court staff, undermine the integrity of the Court system. Such attacks must be dealt with robustly by Law Enforcement Authorities to ensure that those who are engaged in assisting the Court in the administration of justice are not in any way unfairly targeted or bullied. The Association seeks to address all of the above issues via our engagement with the Court Users Group.

The Association remains concerned with the reported ongoing difficulties for members and their clients in engaging with the digital system of the Decision Support Service. There is a noted marked decline in the number of Enduring Powers of Attorney being created. The policy of the new Government to provide for a Solicitors’ Portal thus facilitating solicitors to engage directly with the digital system of the Decision Support Service on behalf of their clients is most welcome and details of the system’s proposed rollout plans are awaited.

The Association supports amending 4 the Parchment

legislation to expand the powers of the Legal Services Regulatory Authority in addressing at an earlier stage such complaints as may be deemed frivolous or vexatious.

The Association supports a review of the manner in which the GDPR legislation is being used to facilitate unwarranted information requests being made of litigation solicitors by parties seeking to use the GDPR process rather than Discovery.

The continuing developments by Tailte Eireann in engaging with solicitors are acknowledged by the Association. Tailte Eireann has agreed to provide written details of the first reason for the rejection of an application and has indicated that minor

queries will be addressed by email directly with solicitors rather than simply rejecting the entire Dealing. Such positive engagement is very welcome news to property solicitors.

My thanks to all members who continue to contribute to the Association in their various roles on Council, Committees and otherwise.

It is the engagement of our members which enables the Association to continue to represent your views, promote your concerns and inform you as to developments in law relevant to your practice. I look forward to continuing the great work of the Association during the coming year.

Niall Cawley, DSBA President

LAND REGISTRY MAPPING & BER CERTIFICATION SPECIALISTS l l l l l l

COMMERCIAL ENERGY RATINGS LTD t:

e:

www.cerl.ie

LAND REGISTRY MAPPING & BER CERTIFICATION SPECIALISTS l Land Registry Compliant Maps from €250+VAT l 650 Land Registration Maps produced yearly

l 2,000 Commercial & Residential BER Certs issued annually l Qualified team of Architects & Engineers registered with

SEAI & Engineers Ireland

l Prompt Efficient Service l Full PI Insurance

COMMERCIAL ENERGY RATINGS LTD

Unit 3, Churchtown Business Park, Churchtown, Dublin 14. t: 01-2983000 e: info@cerl.ie www.cerl.ie

YOUR LE GAL COSTS PA RTN E R McCann Sadlie r, Lega l Costs Ac c ounta nts ha s over 100 10 years of com bine d le gal costs ex perienc e. We a re a results esults dr driven team eam of le g al cost s p ra c titioners suppor ted by spec ialised ised staff.

C e nt ral to ou r practice is the swift attentionn to a ll ma tters luding ters inc ludi t h e p reparation of b ills of costs for adjudic a tion bills ion opposing oppo lls or gene ge ra l ad vicc e s, s in eve r y are a of litiga tion and non-c -c oonte ntious bu busi siness. ness.

Al l o f ou r prac tit ion e rs are members of thee Inst itute of Leg Legal Costs C Acc c oun tants. tan ts.

T 01 8407069

E I NFO @M c CANNSAD ANNS L I E R . IE

W M c CA CANNSAD SAD L IE R . IE

K SWORDS, DU BL I N, K67 XH29. DX 9 1 0 1 0 11 NORT H STR E E T BU SI NE SS PA R K,

Photography: Mark Harrison

DSBA AGM The AGM of the Dublin Solicitors Bar Association took place at the Westbury Hotel on the 23rd October 2024.

The AGM was extremely well attended as it signalled the end of Matthew Kenny’s year as President.

Niall Cawley took over the reins as the new President of the DSBA. The Council of the DSBA for 2024/2025 is as follows: Niall Cawley – President (Niall T. Cawley Solicitors) Paul Ryan – Vice President (Verizon) Ciara O’Kennedy – Hon. Secretary (Byrne Wallace Shields) Avril Mangan – Treasurer (Mangan and Co.) Joan Doran – Programmes Director (Joan Doran Solicitors) Áine Gleeson (AMOSS) Patrick Longworth (McCann Fitzgerald) Ciara Hallinan (Michael J. Staines & Co.) Cliona Costello (CC & Co.) Eimear O’Doherty (Dun Laoghaire Rathdown County Council) Marcus Hanahoe (M.E. Hanahoe Solicitors) Aileen Curry (Curry and Hickey Solicitors) Stefan O’Connor (Mannion Solicitors) Zoe Hughes (St. John Solicitors) Jessica Hickey (Hibernian Law)

6 the Parchment

Left: DSBA President Niall Cawley with outgoing DSBA President Matthew Kenny

Spring 2025 dsba.ie

DSBA News

Left: Marcus Hanahoe, Jessica Hickey, Eimear O’Doherty and Stefan O’Connor Far left: Incoming DSBA President Niall Cawley

Right: April Byrne and outgoing DSBA President Matthew Kenny Far right: Avril Mangan, Anne Leech and Cliona Costello

Left: Diego Gallagher, Zoe Hughes and Lisa Tyndall Far left: Aileen Curry and David Hickey

Right: Matthew Kenny and Maura Smith Far right: Joan Doran, Paul Ryan and Ciara Hallinan

the Parchment 7

In Memory

Marie Quirke – A TRIBUTE

T

he recent sudden passing of Judge Marie uirke has left all who knew her in deep shock and sadness. On Tuesday, 21st January 2025 there was a sense of unease in District Court No. 23, where Judge uirke sat for the previous 4 years, when she did not appear as usual on the dot at 10.30 a.m.

When the news broke later that morning, District Court Clerks who sat with her daily, and solicitors and barristers who attended regularly at District Court No. 23 were visibly upset and shocked. Many expressed feelings like they had lost a friend. Such was the high regard and affection the legal community had for her.

A native of Tipperary, Marie uirke was born on the 10th May 1964, attended primary school in Ayle before going on to boarding school at the Convent of Mercy, Doon.

She graduated from UCC and qualified as a solicitor working in private practice in Ennis, Waterford and Dublin, before joining the Legal Aid Board, gaining considerable experience in the area of childcare and family law.

On being appointed to the District Court in 2012, Judge uirke spent almost 8 years in the area of childcare and family law before moving in 2020 to District Court No. 23 where she dealt with small claims, local authority matters, civil cases, RTB, and licensing applications.

8 the Parchment

The heavy workload did not faze her, and she dealt with her court lists in a practical and efficient manner.

All the District Court Clerks who sat with her in Court spoke of how supportive she was to them, working with them and giving guidance.

Everyone who came before Judge uirke was treated with respect, fairness and compassion. Justice was administered with humanity and common sense.

She had empathy for the person in difficult circumstances. She was always interested to hear people’s story, and used to say she did not want any person to leave court feeling they hadn’t had a chance to speak.

Judge uirke disapproved when legal practitioners were discourteous to each other, or the Court, and she would let out a shout which would stun everyone into silence. If someone was not happy with her decision, Judge uirke’s usual reply was “I am a creature of statute. I don’t make the law. I just interpret and apply the law”.

She had the most infectious laugh and wry sense of humour which would brighten the entire courtroom.

Licensing matters brought out her sense of wit, the names of licensed premises, sample menus for restaurants, and publicans retiring from business always provided a source of levity.

Judge uirke said she was interested in learning about new areas of law, and more recently, the in uence of AI. As she said with a smile, coming from a farming background the term AI had a different meaning for her Occasionally, I would meet Judge uirke for a quick cup of coffee. It was then I would hear about Marie uirke the person, her love of family, her husband Alan, children Dearbhla and Tiernan, and her little dog. How immensely proud she was of Dearbhla and Tiernan as they start off on their career paths. There was also talk of holidays, the Camino last year with Alan, the short break in Morocco with Dearbhla, and the many trips to Spain. It is her family who suffer her loss most and to them we offer our sympathy and prayers.

The Friday before she died, I had a coffee with Judge uirke. She was in great form, laughing, planning the next trip to Spain. As we left, I wished her a good weekend and said I would see her the following Tuesday.

She waved, smiling red lipstick, and a happy glint in her eyes.

As President of the District Court, Judge Paul Kelly said, “she embodied all the best qualities of a judge, extensive legal knowledge, experience, and expertise, patience, fairness, compassion, and a deep understanding of the human condition”.

Judge uirke’s legacy of fairness, empathy, and dedication to the law will not be forgotten. P Y.A.

PROBATE PRE-CHECK SERVICE FOR PEACE OF MIND

probatecheck@findersinternational.ie www.findersinternational.ie 01 5676940 12D Butlers Court, Sir John Rogerson’s Quay, Dublin , D02 EC98

Expert Document Review and Detailed Report

Compensation for Criminal Injuries Gavan Carty examines a recent Irish High Court case in which the issue of the fairness and adequacy of the State compensation awards were considered. The question was ultimately referred to the European Court of Justice

10 the Parchment

Background

The Scheme

In the recent Irish High Court case of Blanco v.

Criminal Injuries Compensation Tribunal thers 2024 IEHC 171, Ms. Justice Emily Egan examined the workings of the Criminal Injuries Compensation Tribunal (CICT), which administers the Criminal Injuries Compensation Scheme (the Scheme), the State-operated compensation scheme for victims of crime.

Alejandro Blanco, the Plaintiff, was a qualified software engineer, born in Spain but resident in Ireland. He was seriously injured in a criminal assault outside his home in July 2015. He suffered eye injuries in the assault involving pain and partial loss of vision in his left eye and double vision in both eyes, a fractured jawbone, partial immobilisation of his left arm, a chipped tooth, stress and anxiety. He lost his employment as a result of the injuries.

He applied to the CICT for compensation within the required timetable. After a considerable delay, in February 2019 he was awarded the sum of 645.65 by the tribunal. This amount equated precisely with his out-of-pocket expenses, principally the cost of replacing glasses broken in the assault and the A E admission fee, but it made no award for pain and suffering or for any loss of earnings.

Mr. Blanco was dissatisfied with this outcome and issued proceedings against the CICT, the Minister for Justice and Equality, Ireland and the Attorney General seeking a declaration that the scheme of compensation operated by the CICT was incompatible with the State’s obligations under Council Directive 2004/80/ EC. In his proceedings he argued the Defendants had failed to provide a “fair and appropriate” level of compensation since the Scheme arbitrarily excluded any compensation for pain and suffering. The Court noted that there are 17 similar cases currently before the Irish Courts seeking enhanced compensation.

The Scheme was originally set up by the Irish Government in 1974 in the aftermath of the Dublin and Monaghan terrorist bombings. It has always operated on a non-statutory basis being dependent for annual Dáil votes for its continued funding. This arrangement limits the amounts of compensation paid by the Tribunal since it must at all times operate within its allocated budget. Prior to 1986, the Scheme did pay compensation for nonmaterial losses, including pain and suffering, but this entitlement was removed due to the severe financial difficulties of the State at that time. Since 2004 the State has been required to implement the EU Compensation Directive, and it has deemed that the pre-existing Scheme would be the vehicle to meet this requirement. The Scheme has been amended twice since that time, most recently in 2021, but these amendments did not result in changes to the original terms.

Alongside the Scheme, the Victim’s Charter (the Charter’), originally published in 1999, was updated in 2021 to meet the broader obligations of the criminal justice system in providing access to information for victims, pursuant to Articles 4 and 6 of the Directive.

The Charter represents a non-legally-binding guide that provides information and support services to victims of crime, outlining their rights within the criminal justice system. The services featured in the Charter are funded and operated independently of the State.

Review of Related Cases The Court in Blanco v. Criminal Injuries Compensation Tribunal examined the recent related cases both in the Irish and in the EU courts. The Court of Justice of the European Union (CJEU) was recently asked to adjudicate on the adequacy of the compensation award

Spring 2025 dsba.ie Gavan Carty is managing partner at Kent Carty Solicitors

in an Italian case, known as the case - Presiden a del Consiglio del inistri v Case C12 1 , U C 2020 .

In that case, under the Italian state scheme, a fixed sum of 4,800 compensation for pain and suffering had been paid to a victim of sexual violence. The Court was asked to consider whether this amount constituted “fair and appropriate compensation” as required under Article 12(2) of the Compensation Directive.

The CJEU held that this sum was not fair and appropriate and did not represent an appropriate contribution to the reparation for the material and non-material harm suffered. In short, it concluded that a fixed sum could not be appropriate in all cases.

At the same time, it recognised that discretion of a member state to set the amounts of compensation and the need for any scheme to be financially viable. It held that the member state would exceed its discretion if the compensation awarded was “manifestly insufficient having regard to the seriousness of the damage for the victims”.

The BV ruling was considered by the Irish Court of Appeal in the paired cases of Doyle and elly v. Criminal Injuries Compensation Tribunal thers 2020 I CA 42.

The appellants in Doyle and elly argued that the CJEU ruling that some account is taken of the seriousness of the harm suffered by the victims effectively required the Irish Scheme to permit some award to be made for damages for pain and suffering.

The Court of Appeal held that arguments had been presented in the BV case that supported the positions of both the appellants and the respondents.

Furthermore, crucially, the CJEU had stopped short of definitively signalling that a member state must provide compensation for pain and suffering. Presumably, the Court meant by this that the CJEU had not concluded that such an award must be made by a member state in all cases, merely that the Italian award of 4,800 to the victim in the BV case was insufficient to satisfy the Directive’s requirements.

The Court of Appeal in Doyle and elly also considered the recent Irish Supreme Court case of Director of Public Prosecutions v Steven Duffy 202 I SC 1 which involved a criminal appeal. The Court reiterated all of the principles enunciated in the BV case and concluded that fair and appropriate compensation by the Scheme did not need to be the same amount as an offender might be ordered to pay in full reparation but that awards must have regard to the seriousness of the consequences of the crime for the victim. This ruling effectively puts an upper limit on a pain and suffering award under the Scheme but again does not definitively conclude that a victim has an entitlement to a pain and suffering award under the Scheme.

The Charter also highlights the restriction on receiving compensation for pain and suffering, reinforcing this limitation.

Referral to CJEU by Ms. Justice Egan Faced with the continuing uncertainty of the administration of the Scheme and with the fact that there were 17 outstanding similar cases, Ms. Justice Egan concluded that the matter necessitated a formal referral to the Court of Justice to resolve the issues.

She therefore framed five questions to be addressed by the CJEU:

Criminal Compensation

1 Does the obligation imposed on ember States by Article 12 2 of Directive 2004 0 C to provide fair and appropriate compensation re uire that a victim should be compensated for both material and non-material loss 2 hat form of loss falls within the scope of “non-material loss” Does pain and suffering fall within this scope 4 hat relationship should “fair and appropriate” compensation bear to the damages in tort that would be awarded against a tort-feasor Can the compensation under the established Irish scheme be regarded as “fair and appropriate” if a victim is awarded 4 . as compensation for a serious eye injury

Conclusions Currently a reference to the CJEU is taking around 16 months for a reply. The earliest likely response will be in the latter half of 2025. If the CJEU decides that changes to the Irish scheme are required, it will be for the Irish Government to decide how it will deploy its discretion in future cases by a modification to the existing scheme. If it is agreed that appropriate compensation for pain and suffering must be paid, this will need to be framed in a form that can be implemented by the Tribunal and overseen by the Courts. One option for the Government would be to identify a percentage of the Personal Injury Guidelines as identifying the appropriate level of compensation.

At present the Scheme is funded by annual cash grants. This should be changed to a full statutory basis, as was recommended by the Law Reform Commission in 2019. In 2021, the Government indicated a willingness to make this change but there has been no evident progress to date.

It is to be hoped that the Scheme can receive a significant modernisation and overhaul. Future victims should be appropriately granted their rights as enunciated in the Charter, as well as the fair and appropriate compensation that they deserve.

While the decision of the CJEU in the Alejandro Blanco reference is awaited, it is to be expected that further plaintiffs who are dissatisfied with the exclusion of any ability to claim damages for pain and suffering, will bring proceedings against the CICT, the Minister for Justice, Ireland and the Attorney General and that the number of such challenges will increase. P

Future victims should be appropriately granted their rights as enunciated in the Charter, as well as the fair and appropriate compensation that they deserve

the Parchment 11

Too Important Not to Wait any Longer Keith Walsh Solicitor and SC examines the proposed changes to the family law system and changes in the new Family Court Act 2024.

He says that we need to change the family justice system now and suggest some immediate reforms

T

he Family Courts Act was enacted on 13th November 2024 but none of the sections have yet been commenced. This Act started its journey as the Family Court Bill General Scheme (September 2020) which was followed on 1st December 2022 by the Family Courts Bill 2022.

The intention of the Act is to modernise the family law system of justice in Ireland. A welcome set of guiding principles are set out to be followed by all those involved in the family courts including: ensuring the importance of the welfare of children involved in the proceedings or likely to be affected by their outcome, encouraging alternatives to litigation, promoting good case management practice, ensuring that proceedings are conducted as far as possible in a user-friendly manner and where feasible minimising the cost of the proceedings.

The government established a Family Justice Oversight Group to progress the development of a national family justice service and various submissions were made to this group by the DSBA, Law Society, Bar Council and many NGOs and individuals.

The Oversight Group was chaired by and included representatives from the key State actors but contains no representatives of the representative bodies of the legal profession. This is not acceptable, and the ongoing involvement of the legal professions is essential to ensure any new reforms are as good as they possibly can be.

Three major concerns about the Family Courts Bill were raised by the legal profession and civil society groups:

12 the Parchment

1. The proposed move to increase the jurisdiction of the District Court to €1 million and to permit it to deal with Judicial Separation, Divorce and other cases formerly reserved for the Circuit and High Court. This was suggested to be a very unwise move as compelling litigants to bring cases in the District Court was likely to make matters worse rather than better due to the limitations already embedded in the District Court system including lack of resources, current huge number of cases, lack of infrastructure. The final draft of the Bill took these concerns on board without abolishing the jurisdiction of the District Court to deal with these cases or reducing the proposed new jurisdiction of the District Court. Instead, Section 39 of the Act was amended to state that “… where family law proceedings may, under an enactment, be initiated in the Family District Court or another court, nothing in this Act shall require such proceedings to be initiated in the Family District Court.”

However, the legal professions continue to have concerns about the effect that the transfer of these cases will have for judicial and separation cases as well as the other cases displaced by the additional workload placed on an already overworked District Court system.

2. The proposed ban on Judicial Separation and Divorce cases being taken in the High Court unless there were “special reasons” to do so. The Law Society, DSBA and Bar Council advocated strongly for the removal of the requirement for special reasons, and this was ultimately removed

Spring 2025 dsba.ie Keith Walsh SC is a Dublin solicitor practising primarily in the area of family law and family disputes. He is a qualified mediator and collaborative lawyer

from the final Bill and is not present in the Act. The jurisdiction of the High Court in family law matters remains at €3 million.

3. The need for a greater focus on victims of domestic violence in relation to the guiding principles and in relation to the encouragement and facilitation of ADR. These concerns were taken on board, and the Bill was amended in this regard.

Almost all of the changes proposed in the Family Courts Act 2024 will improve the system of family justice for litigants. However, due to the resource requirements, it appears very likely that no change will occur for some considerable time due to the need to locate and/or create the new Family Courts, the creation and amalgamation of the new geographical districts and circuits, the selection of the new judges and the various political and administrative difficulties which are likely to arise. It is essential that the system is properly resourced, or it will not improve matters.

Now that we have a very clear vision in the Family Courts Act, it is incumbent on the legal profession, the judiciary, the Courts Service and the Department of Justice to work with other stakeholders to improve the current system pending the overhaul of the entire family justice system as contained in the Family Courts Act. While readers may accuse me of having said this before and it is true that I am guilty of having written this in other articles, I believe it is worth repeating - we should not wait for the

implementation of the Family Courts Act to improve our system. We should start the work now, by streamlining the Family Court Rules, by implementing the necessary guidelines to improve focus on ADR in appropriate cases, by introducing now a system of joint applications where settlement has been reached, by reducing the waiting time for divorce from two to one year, thus almost eliminating the need to issue judicial separation proceedings.

The Law Society in its New Agenda for Justice published in November 2024 states that pending the establishment of the dedicated family courts system provided for under the 2024 Act, “immediate steps should be taken to establish Practice and Procedure Committees across the Courts to review the approach to the implementation of family law matters in their jurisdiction. The Committees should comprise the President of the respective Courts, other judicial representatives, Courts Service representatives, legal practitioners and service user representatives. A forum of this nature could provide insights and devise proposals for system improvements, with the view to working towards a harmonised approach across all Courts. The insights gained from the Practice and Procedure Committee would be key to preparing for the implementation of the Family Courts Act 2024.”

There is now a momentum for change, and we should work with the other stakeholders in the family justice system to create a better system for the families who are forced to use the family justice system to assert their rights. P

Family Law

We should not wait for the implementation of the Family Courts Act to improve our system

the Parchment 13

Waging ‘Lawfare’

COURT OF APPEAL AFFIRMS ISAAC WUNDER ORDER Patrick Longworth and Sean Corcoran examine a recent Court of Appeal judgment which upheld a High Court decision granting an Isaac Wunder Order extending for the first time to statutory tribunals and administrative bodies

I

n Morgan v The Labour Court & Ors. [2025] IECA 2, the Appellant was a secondary school teacher employed by the Kildare and Wicklow Education and Training Board (the “Board”) whose employment had been terminated in 2015.

Ms. Justice Whelan, with Judges Faherty and Binchy concurring, upheld the High Court decision in circumstances where the Appellant had been maintaining a “ceaseless avalanche of claims” against the Respondents before various Court and tribunals.

The High Court described the litigant as having brought “a barrage of identical or materially equivalent claims purporting to challenge her removal”. Between complaints before the Labour Relations Commission, its successor body the Workplace Relations Commission (WRC), the Labour Court, the Circuit Court, and the High Court, the Appellant had made in excess of 50 different complaints against the Board and the Minister for Education.

Both the Board and the Minister brought applications in the High Court seeking to strike out the various pending proceedings and complaints brought by the Appellant, and to restrain the Appellant from instituting any further Court proceedings or complaints before the WRC, or any other forum, relating to the termination of her employment (and/or her pension entitlements). Prior

14 the Parchment

to the High Court decision, there were no reported Irish authorities granting such an Order to prevent the institution of proceedings before a non-Court statutory tribunal.

Isaac Wunder Orders The principles governing Isaac Wunder Orders (restraining a party from instituting further proceedings without prior leave of Court) are relatively well established. See Wunder v Irish Hospitals Trust (1940) Limited (1967). The basis of the Court’s jurisdiction to grant such an Order is to “protect the integrity of the administration of justice by providing a filter to weed out the issue and prosecution of proceedings where such proceedings would amount to an abuse of process”.

Among the factors which will support the granting of an Isaac Wunder Order are: (a) The habitual or persistent institution of vexatious or frivolous proceedings against the parties to earlier proceedings; (b) Where issues tend to be rolled forward into subsequent actions and repeated and supplemented; (c) The institution of actions to decide issues already determined by a court of competent jurisdiction; and (d) The initiation of an action for an improper purpose including the oppression of other parties by

Spring 2025 dsba.ie Patrick Longworth is a senior associate in commercial litigation and dispute resolution at McCann FitzGerald.

He is a Council member of the DSBA. Sean Corcoran is a trainee solicitor at McCann FitzGerald

multifarious proceedings brought for the purposes other than the assertion of legitimate rights.

The Court did reiterate, however, that the remedy is an exceptional one and must be balanced against a party’s right of access to the Courts.

The High Court decision In the circumstances of this case, the High Court granted the Orders sought. In doing so, the High Court relied in particular on the 2021 Supreme Court decision in alewski ( alewski v Adjudication cer and C, Ireland and the Attorney eneral [2021] IESC 24) where it was held that the WRC (and the Labour Court on appeal), in adjudicating on complaints, are administering justice within the meaning of Article 37 of Bunreacht na hEireann (which provides that limited functions and powers of a judicial nature can be exercised by persons duly authorised by law). The Court also relied on the well-established supervisory role of the High Court in ensuring that proceedings before statutory tribunals are conducted in accordance with law.

Accordingly, the High Court held that “it follows as a matter of principle that the High Court has the jurisdiction in appropriate cases to prevent the abuse of process before statutory tribunals which are administering justice, such as the C, by the making of Isaac under type orders preventing the institution of proceedings before such tribunals without the Court’s permission” if the relevant criteria from case law are met.

On the facts of this particular case, the High Court found that it was a “manifestly appropriate case in which to make an Isaac under order in the terms sought” in light of the “habitual and persistent institution of proceedings both before the WRC and in the courts in respect of issues related to the litigant’s removal from her o ce as teacher”, in circumstances where those issues were the subject of binding and conclusive prior determinations. The Appellant appealed to the Court of Appeal.

The Appeal The Court of Appeal first engaged in a detailed analysis of the history of the Appellant’s claims against the Respondents. It went on to consider the nature of the Court’s inherent powers to manage its procedures and to prevent the abuse of process. In doing so, it looked at various cases and academic commentary on the use of the Court’s inherent powers in different contexts. These included the power to hold parties in contempt of court, the power to dismiss/strike out existing proceedings where they are frivolous or vexatious or for want of prosecution, and indeed the power to grant an Isaac Wunder Order imposing limitations on a litigant’s ability to institute further frivolous or vexatious proceedings.

The Court of Appeal also engaged in a detailed discussion of Article 37 and the effect of the alewski decision. Here, the Court agreed with the High Court that Article 37 enshrines the power of the Oireachtas to establish administrative tribunals for the exercise of limited judicial functions which, on establishment, are subject to the supervisory jurisdiction of the High Court (as exemplified by public law remedies like judicial review). Of this jurisdiction, the Court stated: “It extends exceptionally, if found necessary for the proper administration of justice or to protect innocent parties from

abusive conduct or where egregious litigious conduct beyond the norm has been established, to restrain conduct that is oppressive or contrary to the public interest or where claims are abusive or have no prospect of succeeding. On the basis of the evidence, this is such a case.”

The evidence relied on by the Court in reaching that conclusion included the plethora of repetitious claims on issues which had all been conclusively determined, the fact that the submissions made to the Court by the Appellant were found to be wholly irrational, incoherent and incomprehensible, and the Appellant’s stated intention to continue to institute further claims in the future. Indeed, the Court was of the view that if the High Court had declined to extend the Isaac Wunder Orders to the WRC or Labour Court, that could “dilute or render nugatory the Isaac under order restraining applications to the courts” as the Appellant would then “be in a position to seek to continue her campaign of futile claims to the WRC and baseless appeals therefrom to the Labour Court”.

The Court of Appeal also upheld the High Court’s ruling striking out all of the Appellant’s pending claims before various Courts and tribunals.

‘Lawfare’ The Court also noted this case as an example of the use of “lawfare” on the part of the Appellant which it said “might be described as availing of legal processes, remedies, applications and litigation to harass, delegitimise, harm, interfere with or damage the reputation of another.”

In this case, the Court found that: “ The Appellant’s sundry applications, complaints, claims and appeals extant and pending before the WRC and the Labour Court are threadbare and improper efforts to reopen the circumstances which led to her removal from o ce and collaterally attack the inisterial rder of une 201 as well as relitigating a slew of work and pension-related claims to sustain her ongoing futile and doomed campaign by means of waging improper lawfare against the oard and the inister.”

This is consistent with a number of other examples from recent years of the Superior Courts firmly dismissing a range of clearly vexatious and abusive claims. See for example: arrington Anor v The Attorney eneral rs [2025] IEHC 143 (Twomey J); ’ ara v Ireland rs [2023] IEHC 268 (O’Moore J); Fennell v Collins [2019] IEHC 572 (Simons J); C ank Ireland Ltd v Flynn [2017] IEHC 79 (Noonan J).

Litigation

The evidence relied on by the Court in reaching that conclusion included the plethora of repetitious claims on issues which had all been conclusively determined, the fact that the submissions made to the Court by the Appellant were found to be wholly irrational, incoherent and incomprehensible, and the Appellant’s stated intention to continue to institute further claims in the future

Conclusion This was undoubtedly a very extreme case involving over 50 different applications over a period of nine years, all ostensibly seeking to challenge the decision to terminate the Appellant’s employment in some way. A number of the factors relevant to the granting of Isaac Wunder Orders – including “the long duration of the litigation and frequency and multiplicity of claims, their adverse outcomes, the repeated and always unsuccessful appeals, and the very severe burden which the appellant places on the administrative tribunals, the WRC and the Labour Court which must divert their limited resources, expertise and hearing-time away from bona fide claims” – were clearly present. The decision is nonetheless significant in that it confirms that the High Court can grant Isaac Wunder-type Orders which extend to non-Court statutory tribunals. P the Parchment 15

A Man for all Seasons Editor John Geary talks again to retired High Court Judge Bernard Barton for the second part of his Parchment interview – the first part appeared in the Autumn 2024 edition. They discuss the Defamation Bill, the personal injuries landscape and more

Jury Defamation Trials The Defamation (Amendment) Bill 2024 was published in August 2024 and had as one of its primary objectives the abolition of the right to trial by jury in High Court defamation proceedings. Mr. Justice Barton became an outspoken opponent of the proposed abolition citing among many reasons the creation of an exception to the right to jury trial in cases involving the vindication of Constitutional rights to the life, person, good name, freedom of expression and property of the citizen, by removing the right to a jury of one’s peers in serious cases of defamation.

It was anticipated that the Bill would be enacted before the 33rd Dail was dissolved ahead of the general election on the 29th November 2024, but the measure to abolish juries in particular engendered widespread opposition across all political parties and amongst independents as a result of publicly expressed concerns by Bernard Barton and other interested bodies and individuals. The Bill fell with the dissolution.

His wealth of knowledge and experience as a High Court Judge from 2014-2021, 16 the Parchment

I remember the first trial, the senior on the other side asked me who was leading me? And when I told him I wasn’t being led, he refused to talk to me

particularly having presided over most of the high-profile public interest defamation cases of the last decade, put him in a unique position to comment upon a proposal which is inherently anti-democratic, removing as it would, if enacted, the involvement of the public in the administration of justice for serious cases of defamation.

In 2023 he was invited to address the Oireachtas Joint Committee on Justice on the issue. In its report on the scheme for a new defamation bill the committee unanimously recommended the retention of trial by jury, with the final determination on damages to be decided by the trial judge.

The Irish Council of Civil Liberties, which is strongly opposed to the measure, invited him to brief TDs and Senators when the Bill was introduced late last year.

Speaking on the second stage of the bill Jim O’Callaghan SC, now Minister for Justice and then Chairman of the Oireachtas Joint Committee on Justice, expressed the view that a decision to abolish juries in the High Court would be shortsighted, would create a whole new body of jurisprudence that will result in repeated appeals and that

Spring 2025 dsba.ie John Geary is principal at J.V. Geary Solicitors, and he is Editor of the Parchment

Interview

Judge Bernard Barton with his two springers, Bella and Midge, pictured on a recent fishing trip to the West of Ireland

the Parchment 17

Certainly my own approach to a plaintiff who is genuinely injured was to make sure that that person was properly compensated.

It is important to strike a proper balance the proposal ought to be looked at again, particularly in light of the guidelines on damages set out by the Supreme Court in the Higgins case.

The new programme for Government includes a commitment to reform of the law on defamation. Whether the new bill will contain an abolition measure in the same or modified terms as the previous bill remains to be seen. Judge Barton welcomes the opportunity afforded by the election and formation of a new government to reconsider, hopes that the Minister will take his own advice on the original proposal and welcomes other aspects that may change the defamation legal landscape, in particular those relating to SLAPPs. A SLAPP (Strategic Lawsuit Against Public Participation) refers to a defamation claim that is launched with the primary goal of silencing or disrupting responsible investigation, discussion, or debate on matters of public interest, rather than genuinely asserting or exercising a right.

“We have a European Directive now in relation to defamation, in particular the State's obligation 18 the Parchment

to put into domestic legislation provisions which will essentially stop a SLAPP. In essence, these are an abuse of the Court process that attempt to misuse defamation proceedings to essentially silence people. So, there are measures included in the Bill to deal with that, which are absolutely to be welcomed.

"The Bill also seeks to introduce mediation in defamation in a more formal way. Defamation proceedings by their nature can be quite long and costly. And so, anything which helps to dispose of complex litigation in a more timely and less expensive way is to be welcomed.”

The retired Judge is hopeful that the new government with Jim O’Callaghan in the justice portfolio will ensure that removal of the public from involvement in the administration of justice in this area of law will not now occur.

Back in the Mists of Time It’s 1982 and the age-old system of having two senior counsel and one junior counsel on both sides in personal injury trials (then before a jury) was the accepted practice for as long as anyone could remember.

Such a system allowed both legal teams to take on other work, as many cases settled in advance. But in or around 1983/84, when Bernard Barton was a junior, this system came under challenge when insurance companies pressed their own panel of counsel to adopt a position of just one senior and one junior.

He recalls how hugely controversial this move was at the time. “The seniors at the Bar in those days were a very effective Trade Union and decided they were going to resist this suggestion.

As a junior, I was approached by an instructing solicitor at the time who did a lot of work for one of the leading insurance companies. I asked him who were the seniors. He told me that two seniors on the panel had been asked but had refused to accept instructions unless two seniors were retained in the case. So I was being instructed to act alone as a junior. I was informed that I had to take the brief if I was available and suggested if I was in any doubt about that I should look at the rules.

"So, I examined the Code of Conduct and remember my surprise at the discovery. If a solicitor wants to brief you and you are available to accept the brief you are obliged to accept, you can’t refuse it unless you have a conflict.”

Bernard remembers going to speak to a very senior member of the Bar about this unprecedented quandary. The advice he got was to ask the Bar Council to make a ruling on it. A ruling was handed down that the brief had to be taken. This afforded him some protection or cover, but did he get any ak “Did I what... I remember the first trial, the senior on the other side asked me who was leading me? And when I told him I wasn’t being led, he refused to talk to me. When the case was called on for hearing Judge Sean Gannon took the appearances firstly for the Plaintiff and having noted the names of the two seniors and the junior he turned to me and asked ‘and with you?’ I replied, I’m with myself. I had to just get on with it, and I got through it.”

After weathering that storm and playing an unwanted role in the unravelling of the two senior rule, Bernard continued to practise successfully in personal injuries litigation, among many other areas of the law. He took silk in 1997. By the time he was appointed to the High Court bench in 2014, seventy to eighty percent of his time was consumed by personal injuries litigation of one sort or another.

Such was the demand for Bernard Barton SC that one of his insurance clients tried to get him to side entirely with defendants, but he politely declined to do that. He says that the rationale for doing so was professional independence.

“They came to me and said that they’d like to get me to work exclusively for the defence and

Spring 2025 dsba.ie

Interview

Photography: Bryan Meade

not act in cases against them. I felt it would be inappropriate for me to ask any briefing solicitor on behalf of the plaintiff whether in fact the defendant was insured by this particular company.

I didn’t think that was a proper question for counsel to ask, moreover I felt it was in their interest that I should be as objective as possible and acting for the plaintiff in cases would enhance that objectivity. Frankly, they were better off having the view from somebody like that, rather than somebody who had essentially taken the thirty pieces of silver, attractive though that might have been.”

On the Bench Bernard recalls how then President of the High Court Nicholas Kearns assigned him to the Judicial Review and Non-Jury lists as well as appointing him to be the Garda Compensation list judge. He was also appointed to be the appeal judge for the Hepatitis and HIV Tribunal. He savoured sitting at various sessions of the High Court at provincial venues outside Dublin, though in the first couple of years, it suited that he did not sit at venues like Sligo and Dundalk where he had practiced a great deal as Counsel.

“In 2017, Peter Kelly was President of the High Court, and he was a great man for moving people around. He felt that three years doing one thing was enough for anyone. He would move judges out of their comfort zone, which I think was actually quite good. That was my own experience. It was more of a challenge because you had to read up in an area of work that you were not familiar with. When an opportunity arose to head up the civil jury list, I said to Peter that I had a lot of experience in civil jury work and would relish taking on that role; he said, it's all yours.” And the rest is history.

Personal Injuries Landscape As any reader of the Parchment will know, there has been a sea change in personal injuries litigation since the introduction of the Guidelines in April 2021. Prior to that, the Book of Quantum was introduced in 2004 after the establishment of the Personal Injuries Assessment Board and Section 26 of the Civil Liability and Courts Act 2004 greatly curtailed fraudulent or exaggerated cases.

“The record will show not just from me but from other judges, there was a willingness to dismiss cases with the full consequences, costs and otherwise, that flow from fraud or exaggeration.

I did write a judgment in a case which was subsequently appealed unsuccessfully. It was fraudulent personal injuries claim of over two million euros which resulted in an application being made to dismiss the case under Section 26 of the Civil Liability Act 2004.”

However, the retired Judge, who now lives in Wicklow, believes that the pendulum has swung too much in the wrong direction. He recalls how it started with a national media campaign over 20 years ago by the insurance industry encouraging friends, neighbours and family members to report anyone they suspected of making bogus insurance claims to a freephone hotline.

“It was vital to root out fraudulent claims, but it did create a perception, that genuine plaintiffs were up to something. Certainly, my own approach to a plaintiff who was genuinely injured was to make sure that that person was properly and appropriately compensated. It is important to strike a proper balance.”

It was no secret that Judge Barton was prominent in his opposition to the Personal

Injuries Guidelines that were introduced in 2021. His objection was based on principle.

“The separation of powers between the judicial and legislative branches of government requires mutual respect by each for the function and purpose of the other. In this regard, the independence of the judiciary is essential to the health of our democracy. And that is a demarcation which needs to be respected. The function of the Oireachtas is to legislate. If it wanted to introduce statutory guidelines then it was a matter for it.

What happened however is that the Oireachtas essentially handed over that task to the judicial council - but there were many judges, myself included, who took the view that the guidelines which were presented for approval had been influenced by politically stated objectives.

"There was a very prominent campaign which the Parchment 19

Interview

actions. “It was said that getting rid of juries would result in a reduction in damages and costs and consequently premiums. As we know, exactly the opposite happened. The same arguments were advanced before the Injuries Board was set up, and that too didn't result in any sort of sustained reduction in premiums. And as I said in my valedictory speech when I was retiring, I doubted from my experience of nearly 50 years in the law that the reduction in the level of damages and costs which the Guidelines would bring about would ever be passed on to the consumer as had been promised. Three years on, it would appear my predictions have been borne out.”

Pastimes and Retirement

We would be seen as a body not only to be doing the work of the legislature by actually adopting these guidelines, but worse still that we be seen essentially to give effect to the objective of a campaign run by the insurance industry. I thought that was not in the interests of judicial independence led up to legislation that set up the judicial council with the undertone of ‘lets get the judges to do this themselves’. It is the first time that I know of where this was ever attempted and executed in the Irish legal system."

Judge Barton explains his concerns arise as there was such a public campaign by the insurance industry to bring about this result.

In the context of public confidence in the independence of the judiciary the concern was that “we would be seen as a body not only to be doing the work of the legislature by actually adopting these guidelines, but worse still that we’d be essentially seen as giving effect to the objective of a campaign by the insurance industry. I thought that was not in the best interests of judicial independence.

"Fortunately, I did not have to find myself faced with having to implement the Guidelines as a Judge because I retired around the same time that they were adopted. But if I had had to do so I was sworn to uphold the law, an oath which was a cornerstone of my judicial life. So I 20 the Parchment

would undoubtedly have applied the guidelines but exercising such discretion that was possible, if necessary to go beyond the appropriate band or limit if I thought to do so was necessary in order to award the plaintiff a level of compensation that was fair and reasonable compensation proportionate to the injury suffered. If the award was appealed and overturned, then so be it.”

Quite apart from these concerns a golden opportunity was lost to further the objective of a shared island by adopting guidelines which achieved parity with the guidelines in operation in Northern Ireland.

So far as the claimed benefits of the new guidelines are concerned, Judge Barton has lost count of the times he has heard that these would not only render it easier to get insurance but that there would also be a reduction in premiums as a result of the savings which would be made. He recalls the same argument was trotted out by the insurance industry leading up to the 1988 abolition of juries in personal injuries

Born into a family who enjoy fishing, hunting and shooting, such pastimes rubbed off on young Bernard. “My grandfather was a very good shot, tennis and cricket player. An all-round sportsman and a wonderful fisherman. So, to sit in a boat as a 10-year-old with your grandfather fishing and to see his passion for it, I caught the bug.

"I think in our busy lives and what we do for a living, the service that you're giving to people and the pressures that this brings on especially in modern life, to have something which takes you completely away, removes you from the stresses of work is essential for one’s health and wellbeing. I think there's something about these activities, that even if you wanted to think about work, they don't allow you to do so!”

He enjoys fishing and shooting expeditions to various parts of Ireland and is always accompanied by his two springer spaniels, Bella and Midge.

He admits that he has been kept busy since retiring from the High Court in 2021 but doesn’t like to call it retirement. “I like to refer to this time as ‘rewiring’ rather than retiring.

I'm engaged in mediation which I really enjoy because it keeps me in touch with the profession and with what's going on and I feel useful. I get a lot of satisfaction out of helping people to resolve their legal differences in an amicable way.

"I think mediation needs to be given a bit more teeth in terms that there should be more tangible consequences for somebody if they say, ‘I'm not going to mediation…’. Of course you can't force people to go to mediation, but it should certainly be encouraged.”

He reminisces of the great times in the Law Library and is concerned that it is no longer the hive of activity that it once was.

“You can go to the Law Library now and on any day of the week it can be like a morgue. I expect that Covid and remote working has played its part, but I don’t like the look of it.”

Asked if he would do it all over again if given the chance, or would he take another route in life? He doesn’t have to think. “Oh yes, in a heartbeat. I absolutely loved it.” P

DSBA ANNUAL DINNER 2025 WESTBURY HOTEL FRIDAY 9 MAY Drinks 7pm Dinner 8pm Black Tie Tickets – €145 or tables of 10 – €1,450 To book email: anna@dsba.ie

Irish Law Book Award Nominees The DSBA Irish Law Book Awards shortlist of nominees is out! Judging panellist Keith Walsh pores over the runners and riders

T

his year the DSBA Irish Law Book Awards honour authors who published legal books in the years 2023 and 2024. The winners will be announced at a special event in April and unveiled in the summer edition of the Parchment. There is a feast of law books to celebrate, written by solicitors, barristers and academics. Legal publishers Thomson Reuters, Bloomsbury Professional, Clarus Press and Four Courts Press are the legal publishers whose authors have been nominated for these awards. The judging panel is chaired by Keith Walsh and comprises John Geary, Aine Hynes and

Stuart Gilhooly. But don’t take our word for it – have a look at the nominated authors and books and decide for yourself.

Sponsors of this year’s Irish Law Book Awards are longstanding supporters Stephen Fitzpatrick & Co., Legal Costs Accountants who are joined by our new sponsor, legalbooks.ie, Legal & General Shop, the Four Courts. Law Society Skillnet is a collaborative partner of the DSBA for this year’s Book Awards.

Our sincerest thanks to our sponsors and collaborative partner for their invaluable support of the Irish Law Book Awards.

A. Irish Law Book of the Year 2023 and 2024 Nominees

Delany and McGrath on Civil Procedure 5th edition Hilary Biehler, Declan McGrath, Emily Egan McGrath, Aoife Beirne and Gerard Downey, February 2024, 1,912 pages, Thomson Reuters, €465 Hilary Biehler is Professor of Public Law at Trinity College, Dublin. Declan McGrath is a Senior Counsel. Emily Egan McGrath is a Senior Counsel. Aoife Beirne is a practising barrister. Gerard Downey is a practising barrister.

22 the Parchment

Art & Cultural Heritage Law Martin Bradley, 8th November 2024, 250 pages, Clarus Press, €35 Martin Bradley Is a barrister at law and a qualified archivist with over 25 years experience working in the art and cultural heritage sector.

Procurement Law 2nd edition David Browne, December 2024, 1,792 pages, Thomson Reuters, €395

Privacy Law in Ireland Róisín Á Costello, August 2023, 410 pages, Bloomsbury Professional, €185

David Browne is a Senior Counsel at the Irish Bar and practises in administrative and public law, specialising in local government, planning, environmental, and procurement law. He is also the author of The Law of Local Government and Simons on Planning Law, also published by Thomson Reuters.

Róisín Á Costello is Assistant Professor of EU and International Law at Trinity College Dublin, Ireland. She was previously Assistant Professor in the School of Law and Government at Dublin City University, Ireland.

Spring 2025 dsba.ie Keith Walsh SC is a Dublin solicitor practising primarily in the area of family law and family disputes. He is a former President of the DSBA

Family Law 2nd edition Louise Crowley and Marianne Joyce, December 2023, 1,114 pages, Thomson Reuters, €269 Louise Crowley is a professor in family law at University College Cork and the Director of the LLM (Children’s Rights and Family law). Louise is widely published on a range of family law issues.

Marianne Joyce is a graduate of the LLM in Children’s Rights and Family Law at University College Cork. She has previously published on children and young people’s participation in research, having worked as a youth researcher for a number of years.

Book Awards

Education and the Law, 3rd edition Dympna Glendenning, March 2023, 546 pages, Bloomsbury Professional, €235

Family Law in Context Dr Maebh Harding and Dr Deirdre McGowan (editors), 12th October 2023, 350 pages, Clarus Press, €59

A Century of Courts, The Courts of Justice Act 1924 Niamh Howlin, editor, November 2024, 378 pages, Four Courts Press, €49.50

Barristers in Ireland: An evolving profession since 1921 Niamh Howlin, October 2023, 464 pages, Four Courts Press, €55.00

Dr Dympna Glendenning BA, HDip (Ed), MEd, PhD, Barrister-at-Law, is a former teacher and school principal. She is also the author of Religion, Education and the Law (2008).

Dr Deirdre McGowan is a lecturer in law at Technological University Dublin.

Niamh Howlin is an associate professor at the Sutherland School of Law, UCD.

Niamh Howlin is an associate professor at the Sutherland School of Law, UCD.

Sponsors of this year’s Irish Law Book Awards are Stephen Fitzpatrick & Co., Legal Costs Accountants and legalbooks.ie.

Law Society Skillnet is a collaborative partner of the DSBA for this year’s Book Awards.

A Guide to Trademark Law and Practice in Ireland, 2nd edition Helen Johnson, April 2023, 936 pages, Bloomsbury Professional, €175

Housing Law & Practical H/B Neil Maddox BL and Finn Keyes BL, 18th April 2024, 400 pages, Clarus Press, €159

Helen Johnson is a Barrister-at-Law, specialising in intellectual property.

Dr Neil Madox BL is a practising barrister and Associate Professor of Law at Maynooth University. Finn Keyes BL is a practising barrister.

Employment Law 2nd edition Frances Meenan, March 2023, 1,718 pages, Thomson Reuters, €477 Frances Meenan is a Senior Counsel at the Bar of Ireland and has also been called to the Bar of Northern Ireland. She practises in the area of employment law.

The Law of Statutory Audits Dáibhí O’Leary, August 2024, 476 pages, Bloomsbury Professional, €275 Dáibhí O’Leary is Legal Director in the Company Compliance and Governance Group of Arthur Cox LLP.

Legal & General Shop Four Courts

the Parchment 23

B. Practical Irish Law Book of the Year 2023 – 2024 Nominees

Use of Force: Law & Practice P/B Cillian Blake, December 2024, 330 pages, Clarus Press, €79 Dr. Cillian Blake is a member of An Garda Síochána.

Landlord and Tenant Law: The Commercial Sector 2nd edition Mema Byrne, May 2024, 556 pages, Thomas Reuters, €324 Mema Byrne is a barrister with a wide civil practice encompassing property and environmental law, probate law, commercial disputes and local government law.

Criminal Defence Representation at Garda Stations Vicky Conway, Yvonne Daly, April 2023, 440 pages, €175 The late Dr Vicky Conway was an Associate Professor of Law at DCU, and she specialised in police oversight and accountability, police corruption and Irish policing. Vicky passed away in the summer of 2022.

Professor Yvonne Daly is Professor of Criminal Law and Evidence at DCU, and she has a specific research focus on effective criminal defence and the legal regulation of criminal investigations.

Vulnerable Witnesses and defendants in Criminal Proceedings H/B Miriam Delahunt, 8th January 2024, 400 pages, Clarus Press, €139 Dr Miriam Delahunt is a practising criminal barrister.

She has acted as an intermediary for defendants and has published several articles in the area of vulnerable witnesses and defendants.

Coroners: Practice and Procedure 2nd edition Dr Brian Farrell, September 2024, 754 Pages, Thomas Reuters, €345 Dr Brian Farrell is a former Dublin City and District Coroner.

Gibbons on Trade Mark Law 3rd edition H/B Glen Gibbons, February 2023, 610 pages, Clarus Press, €175

Irish Family Law Handbook, 7th edition Deirdre Kennedy, Elizabeth Maguire, February 2024, 744 pages, €215

Protected Disclosures Act 2014 2nd edition Anthony Kerr & Lauren Kierans, August 2024, 358 pages, Thomas Reuters, €137

Lyall on Land Law 5th edition Dr Noel McGrath, October 2023, 1,084 pages, Thomas Reuters, €125

Criminal Legislation in Ireland, 4th edition Lynn O’Sullivan, August 2024, 2,116 pages, Clarus Press, €210

Glen Gibbons is a barrister with extensive experience of IP litigation.

Deirdre Kennedy is a practising barrister. Elizabeth Maguire is a Judge of the Circuit Court.

Anthony Kerr is a Senior Counsel and Adjunct Associate Professor in the UCD Sutherland School of Law. Dr Lauren Kierans BL is a Lecturer-in-Law at School of Law and Criminology, Maynooth University, a Barrister, the founder of the Irish Whistleblowing Law Society.

Dr Noel McGrath is a barrister and Lecturer in Law at the Sutherland School of Law, University College Dublin.

Lynn O’Sullivan BCL, BL is a qualified barrister.

Having practised for nine years, Lynn currently works as Advisory Counsel in the Office of the Attorney General.

24 the Parchment

Spring 2025 dsba.ie

Book Awards

The Law of Personal Insolvency 1st edition Keith Rooney and Eoin Martin, October 2024, 490 pages, Thomas Reuters, €195 Keith Rooney was called to the Bar of Ireland in 2010 and practises in Chancery, Personal and Corporate Insolvency, Property, General Common Law and Commercial Law. Eoin Martin was called to the Bar of Ireland in 2011 and practises in the fields of commercial and chancery law, insolvency, property and general common law.

Entertainment & Media Law Ireland Simon Shire, 23rd November 2023, 790 pages, Clarus Press, €149 (PB) €199 (HB) Simon Shire is a Consultant Solicitor and Notary Public who specialises in entertainment and property law.

The Assisted DecisionMaking Handbook Emma Slattery, June 2024, 786 pages, €195 Emma Slattery BL is a practising barrister specialising in capacity law and the ADMCA.

THE DSBA would like to thank the support of this year’s Irish Law Book Awards sponsors:

legalbooks.ie

Stephen Fitzpatrick & Co., Legal Costs Accountants

and Legal & General Shop Four Courts

Law Society Skillnet is a collaborative partner of the Irish Book Awards and their continued support is greatly appreciated

the Parchment 25

MEMBERSHIP

DSBA – Our Benefits T he Dublin Solicitors Bar Association (“DSBA”) is the largest bar association in Ireland, having been established in 1935.

It is a representational and not a regulatory organisation, existing to promote the welfare and interests of its members who are solicitors. The DSBA aims to promote a vibrant and up-to-date

Parchment

profession and collegiality amongst solicitors.

The DSBA offers the following benefits to members:

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

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

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

Parchment

the

DSBA .IE

the

DUBLI N SOLIC

IRISH PS PRE-NU A fresh look atreements premarital ag

ITORS BAR

ASSO CIATIO

N MAGA ZINE

| SPRIN G 2024

| ISSUE 99

DSB A.IE

ParchmentRTHUE NAWAY

DUB LIN SOLI

the

ASSO CIAT

ION MAG

AZIN E | AUTU

MN 2024

| ISSU E

DSBA. IE

DUBLI N SOLICI

TORS BAR ASSOC

IATION MAGAZ

INE | SUMM ER

2024 | ISSUE

ENDURING POWER OF ATTORNEY (EPA) SYSTEM How did we get

JURY?

100

Mr. Justice speaks out Bernard Barton

NT DSBA PRESIDE NNY MATTHEW KEWED INTERVIE

LOPMENTS RECENT DEVEYMENT LAW where do we go here and IN EMPLO

now?

BURNOUT IN LEGAL PROFESSITHE ON ANNUAL DSBA LAW BOOK AWARDS WINNER S

26 the Parchment

CITO RS BAR

DIVORCE A NEW SOCOACH – LUTION? FOCUS ON SHOCK AN NERVOUS D MAREV INJUNCTIO A NS

101

Spring 2025 dsba.ie

Membership

DSBA Parchment Magazine – Our award-winning quarterly maga ine which will keep you up to date with the profession and practice.

DSBA Sports Events – Golf, tag rugby, soccer, cricket, tennis – events to promote collegiality and friendship amongst solicitors.

DSBA Social Events – Events for solicitors throughout the year and our notto-be-missed annual conference.

DSBA Submissions – Our committees and council work hard to represent solicitors and their interests; there is a current DSBA taskforce on the Legal Services Regulation Act. The Consult a Colleague Helpline is available to confidentially assist every member of the profession nationwide with any problem whether personal or professional free of charge. The volunteers on the panel who provide the service are all solicitors of considerable experience, www.consultacolleague.ie.

DSBA Younger Members’ Committee represents the interests,

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

DSBA Management Tools such as

– CORT – Computerised Objections and Requisitions on Title.

DSBA Website – www.dsba.ie. See our

regularly updated website for information on all of the above.

For renewal and new membership please complete the form (right) in full and return it together with a cheque/bank draft/ postal order for the appropriate fee to Maura Smith, DSBA, Unit 206, The Capel Building, Mary’s Abbey, Dublin 7; D 200206 Capel Building or call 01 6706089 to pay by credit/debit card.

GROUP MEMBERSHIP FEE 2025 One member 2nd to 5th members 6th to 10th members 11th to 20th members 21st to 50th members 51st to 100th members 101st to 150p members 151 plus members

€115 €110 each €105 each €100 each €90 each €85 each €80 each €75 each

✁ Name: Firm name: Firm address: Phone number: Fax number: DX number: Email address: Year admitted to the roll: Enclosed please find *cheque/bank draft/postal order for € for * new membership/renewal

the Parchment 27

What’s Next for Employment Equality and Equal Status Legislation?

Siobh n Lafferty looks at potential new changes to the employment equality law landscape arising from a recent Government review

T

he Government committed to a review of Irish equality legislation in June 2021. On 6 February 2025, the Department of Children, Equality, Disability, Integration and Youth published a review of Ireland’s equality legislation, particularly focusing on the Employment Equality Acts 1998-2021 and the Equal Status Acts 2000 to 2018.

Arising from this review the General Scheme of the Equality (Miscellaneous Provisions) Scheme (the “Scheme”) – was approved by the Government in November 2024 and published in February 2025. A general scheme in Irish law is an early stage in the legislative process, which broadly sets out what a full draft bill is expected to look like but is subject to change. The Scheme includes provisions to implement the EU Pay Transparency Directive (the “Directive”) as well as proposing changes to time limits relating to certain employment equality and equal status claims, discussed below.

Pay Transparency In terms of pay transparency, the Scheme provides for transparency at the job recruitment stage and in respect of advertising roles. If implemented, it will require employers to give information on salary levels in the job advertisements. Interestingly, this requirement goes beyond what is required under the Directive – which does not state that the information needs to be published in a job advert but rather provides that it can be published in the job advert or simply provided in advance of the interview.

The Scheme, as currently drafted, also prohibits 28 the Parchment

employers from asking job applicants about their pay history or current rate of pay, as provided for in article 5 of the Directive.

What to Look out for?

The Scheme will be scrutinised and developed as it progresses through the legislative process, but it seems likely that employers will be required to carefully consider the precise information to be included in a job advert. It is anticipated that the Scheme will prevent employers from publishing broad salary ranges but how precise employers will be required to be remains to be seen. Employers should take this opportunity to do a full pay audit of staff and establish salary ranges as they will need these for job adverts and will likely not be able to ask applicants about their salary levels going forward.

Other Provisions of the Scheme The Scheme also provides for some key developments to the Employment Equality Act 1998 (the “1998 Act”): • Currently there are certain provisions relating to positive action in the 1998 Act. The Scheme broadens the positive action grounds to ensure equality in practice by including “prospective employees”.

The purpose of this amendment is to address the employment participation rates of groups who have historically been lower than average, such as the Travelling community, disabled persons and lone parents. This provision allows employers to directly develop recruitment initiatives focused on grounds other than gender, for groups where there are lower participation rates in the labour market.

Spring 2025 dsba.ie Siobhán Lafferty is a senior associate solicitor at Byrne Wallace Shields LLP

• The Scheme seeks to remove the provision in the 1998 Act permitting a lower rate of pay to a disabled person where their productivity is restricted compared to other staff.

• Currently under the 1998 Act, employers are entitled to set out specific educational, technical or professional qualifications required for a particular role without being required to justify those qualifications. The Scheme proposes to introduce a requirement on employers to show that the specific criteria they seek of a job applicant is necessary and proportionate to the role.

Changes to Time Limits Of particular note, the Scheme proposes to extend the time limits for submitting a claim to the WRC under the 1998 Act to 12 months initially, with a possible extension to 18 months where there is reasonable cause. Currently a claim must be submitted within six months of the alleged incident, with the ability to apply for an extension for a period to up to a maximum of 12 months where the complainant has established reasonable cause.

Similarly, the Scheme proposes an extension of time for submitting a claim under the Equal Status Act 2000 (the “2000 Act”). The 2000 Act currently requires complainants to firstly notify the service provider of the alleged discrimination within two months of the incident. Under the Scheme, complainants would have up to four months to notify the service provider of the alleged discrimination, with the possibility of an extension by a further two months. The Scheme also provides for the time limit for submitting a claim to the

Employment Law

WRC to be extended from six to 12 months, with the possibility of an extension for a further six months.

Should these extended time limits be introduced as proposed, it will in fact double the time period that an individual could bring a claim under the 1998 or 2000 Act and arguably significantly change the landscape in managing issues and claims relating to discrimination.

New Remedies?

It is also worth noting that under the 2000 Act where a person or organisation is found guilty of discrimination, the compensation limit is currently €15,000. In order to be brought in line with the EU Equality Directives, which require that all compensation be effective, proportionate, and dissuasive’, the Scheme proposes to raise the compensation limit to €75,000.00. Given the significant increase in the maximum limit, if implemented it is intended that guidance will be provided to the WRC regarding the appropriate levels of award to be made. This is a very significant increase.

Conclusion The proposed Scheme, if passed as it is currently drafted, will bring substantial changes to the Irish employment equality law landscape, including potentially larger awards, a broadened scope of the application of the legislation in general, and longer time periods for employees to bring claims to the WRC. Employers should consider planning for the implementation of the Directive in Ireland and keep an eye on how the Scheme develops as it goes through the various stages of the legislative process. P

In order to be brought in line with the EU Equality Directives, which require that all compensation be effective, proportionate, and dissuasive’, the Scheme proposes to raise the compensation limit to €75,000.00

the Parchment 29

Anti-money laundering legislation

- WHAT YOU NEED TO KNOW Anti-money laundering/counter terrorist financing legislation, in so far as it is relevant to solicitors, has evolved since the beginning of this century. Susan Martin outlines the role that solicitors must play in detecting, preventing, and deterring those who may use the financial system to launder the proceeds of crime or to fund terrorism

What is money laundering?

Money laundering is described by the Central Bank of Ireland as “the process by which the proceeds of crime are processed ( washed’) through the financial system in an effort to disguise their illegal origin”. It subverts the financial system through profit-making crime – e.g. tax evasion, fraud, theft, drug trafficking and attempts to conceal or convert the proceeds of crime.

What is terrorist financing?

Terrorist financing is the offence of providing, collecting, or receiving funds with the intent or knowledge that they will be used to carry out an act of terrorism or to cause death or serious bodily injury.

It also includes collecting or receiving funds with the intent or knowledge that they will benefit a terrorist group. Money laundering and terrorist financing subvert the financial system and finance crime.

Terrorist groups use funding to cause death and to seriously injure and maim.

Solicitors have a role to play in ensuring that we do not facilitate money laundering or terrorist financing.

Legislative background Much of AML/CFT legislation has arisen through the work of FATF – the financial action task force [set up at the G7 summit in 1989 to combat anti money laundering], and through EU legislation. The first EU legislative act on anti-money laundering directive was 30 the Parchment

1AMLD, issued in 1991. This largely applied to financial institutions. The second EU anti-money laundering directive, AMLD II was passed in December 2001 and introduced obligations for estate agents, accountants and solicitors to report suspicious transactions. The third EU anti-money laundering directive, AMLD III, was passed in 2005 to align EU laws with the revised FATF Recommendations (2003). AMLD III included obligations on risk-based approach to AML; inclusion of financing of terrorism in AML legislation and created an obligation for enhanced due diligence for politically exposed persons.

The fourth EU anti-money laundering directive, AMLD IV, was passed in 2015 and introduced stricter measures including mandatory registration of beneficial ownership information for companies and trusts; enhanced risk-based measures (e.g. through identification of risk and risk assessments); and lowered cash payment thresholds for customer due diligence.

AMLD V, passed in 2018 and commenced in 2020, provided for more transparency in financial matters including public access to beneficial ownership registers, extending AML/CFT rules to virtual currencies and prepaid cards. AMLD V also provided for enhanced scrutiny from high-risk countries.

[Note: a high-risk country for AML purposes refers to a jurisdiction identified as having deficiencies in its legal, regulatory, or institutional frameworks to combat money laundering or terrorist financing. These

Spring 2025 dsba.ie Susan Martin is the principal of Martin Solicitors, Clarehall, Dublin 13. She is a former President of the DSBA

Practice Management

countries pose a greater risk for financial crimes due to inadequate controls or enforcement.]

AMLD VI, published in 2024, provides that for the identification of money laundering and terrorist financing risks at EU and Member State level; enhanced regulation of the financial sector; for increased penalties on those found guilty of offences to do with AML/CFT; and enhanced transparency on beneficial ownership, bank account registers and property information.

Relevant Irish Legislation To date, all directives up to AMLD VI have been transposed into Irish Law. The primary Irish Legislation, is the Criminal ustice oney Laundering and Terrorist Financing Act 2010, as amended by Part 2 of the Criminal ustice Act 201 and by the Criminal Justice oney Laundering and Terrorist Financing Amendment Act 201 . A consolidated version of this legislation which may be helpful, can be viewed on the website of the Law Reform Commission. See https revisedacts. lawreform.ie eli 2010 act front revised en html

The solicitor as designated person, pursuant to AML/CTF legislation Our direct obligations to AML/CTF legislation arise through Sections 24 and 25 of the Criminal Justice oney Laundering and Terrorist Financing Act 2010.

Section 24 provides that “relevant independent legal professionals” means a barrister, solicitor or notary who carries out any of the following services a the provision of assistance in the planning or execution of transactions for clients concerning any of the following i buying or selling land or business entities; ii managing the money, securities or other assets of clients; iii opening or managing bank, savings or securities accounts; iv organising contributions for the creation, operation or management of companies; v creating, operating or managing trusts, companies or similar structures or arrangements; b acting for or on behalf of clients in financial transactions or transactions relating to land.’

Section 25(1A) provides that “A relevant independent legal professional shall be a designated person only as respects the carrying out of the services specified in the definition of relevant independent legal professional’ in section 24 1 .”

Role of the Law Society, pursuant to AML/ CTF legislation The Law Society of Ireland, as the competent authority’ pursuant to Section 60 of the Criminal ustice oney Laundering and Terrorist Financing Act, 2010, has an obligation to supervise and monitor solicitors to ensure compliance with AML/CFT obligations; to issue guidance to help solicitors understand and meet their obligations; to inspect solicitors to assess and enforce compliance; to take enforcement actions such as imposing penalties and sanctions for breach of AML/CTF laws; to report suspicious activities or deficiencies in compliance to appropriate agencies; and to co-operate with domestic and other authorities to combat money laundering and terrorist financing.

Ethical issues Some ethical issues arise in terms of practical considerations for solicitors in complying with AML/CFT legislation. One such issue is around the area of client confidentiality. Client confidentiality is an important aspect to the administration of justice and arises from the fiduciary nature of the relationship between solicitor and client. The duty of confidentiality is a significant aspect of a solicitor’s ethical framework. It has been noted as an important aspect in the administration of justice and survives the death of the client. Confidentiality can however be over-ridden where law or circumstances direct it.

For example, a solicitor cannot facilitate activities or the introduction of evidence/documentation where it would result in the Court being misled (see Chapter Solicitors uide to Professional Conduct (4th edition).

The High Court in a judgment by Moriarty J in the case of Inspector of Taxes v A Firm of Solicitors [2013] IEHC 67 noted that: “ o duty of confidentiality is absolute, and the present circumstances amply justify it being overridden”.

Solicitors should be aware that their duty to comply with AML/CTF legislation would override certain client confidentiality considerations. Indeed, should any attempt at money laundering come to pass in the course of a transaction in which they are involved, they will have an obligation inter alia to report the matter to the relevant authorities. [Further guidance can be found with regard to ethical issues in the Solicitor’s uide to Professional Conduct.]

The duty of confidentiality is separate of course from Legal Professional Privilege. Legal professional privilege confers on a client a privilege of exemption from disclosure of communications that may otherwise be required to be revealed. There are circumstances in which it can be lost or waived (see further, Chapter 4, Solicitor’s uide to Professional Conduct]. Section 46 of the 2010 Act provides that “ othing in this Chapter re uires the disclosure of information that is subject to legal privilege. 2 othing in this Chapter re uires a relevant professional adviser

Solicitors should be aware that their duty to comply with AML/CTF legislation would override certain client confidentiality considerations

the Parchment 31

to disclose information that he or she has received from or obtained in relation to a client in the course of ascertaining the legal position of the client. Subsection 2 does not apply to information received from or obtained in relation to a client with the intention of furthering a criminal purpose.”

There is a delicate balance between maintaining confidentiality and complying with AML/CTF obligations. This emphasises the need for solicitors to exercise careful judgement, guided by ethical considerations. It is important to try to navigate the complexity of the dual duties carefully in complying with the legislation without undermining trust which is an essential part of the solicitor/client relationship.

Understanding the limits and obligations surrounding confidentiality and privilege is essential to fulfilling both ethical and legal requirements in the fight against money laundering and terrorist financing.

AML/CTF in the firm If the firm’s work comes within the remit of AML/ CTF legislation, there are ten aspects to consider. (i) Evaluating the business type risk (ii) Policies, systems and controls (iii) Client evaluation (Customer Due Dilligence) (iv) Matter evaluation (v) Management of the risk during the transaction/ course of the matter (vi) Due diligence on the source of funds (vii) Reporting obligations and making reports (viii) Training (ix) Record keeping (x) Monitoring Compliance

Evaluating the business type risk Section 30A of the Criminal ustice oney Laundering and Terrorist Financing Act 2010 [ the 2010 Act’]

32 the Parchment

provides that the firm must assess the risk factors of money laundering and terrorist financing relating to: (a) the nature, scale and complexity of the firm’s business; (b) the type of services the firm provides; (c) the delivery channels through which they provide those services (e.g. in person or via apps/online/ portals) (d) the geographic area in which the firm operates (e) the type of clients the firm usually works for (e.g. demographics, politically exposed persons [PEPs] or associates or relatives of PEPs) In addition, Recommendation 1 of the FATF recommendations state that the firm must undertake a proliferation financing risk assessment. This can be included in the firm business risk assessment or can be a stand-alone document. A proliferation financing risk assessment is an evaluation that helps an organisation identify, understand, and manage the risks of funds or financial services being used to support the proliferation of weapons of mass destruction (WMDs) – such as nuclear, chemical, or biological weapons – and their means of delivery.

While this aspect does not form part of the 2010 Act and the risk may appear to be low for many solicitors’ firms, it would be best practice to have considered same. It is an obligation for solicitors in England and Wales to make a proliferation risk assessment as part of their Firm Wide Risk Assessment by virtue of the oney laundering, Terrorist Financing and Transfer of Funds Information on the Payer egulations 201 .

Policies, Systems and Controls The Business Risk Assessment as described above will drive the policies, controls and procedures [PCPs required by the AML/CTF legislation and will include the following, pursuant to Section 54(3) of the 2010 Act:

Area

Description

a

Risk Management

Policies to identify, assess, mitigate, and manage ML/TF risk factors.

b

Customer Due Diligence (CDD)

Measures for applying appropriate customer due diligence procedures.

c

Monitoring

Ongoing monitoring of transactions and business relationships.

d

Scrutiny of Suspicious Activity

Identifying and reviewing complex/large transactions, unusual patterns with no visible lawful purpose, or activities likely linked to ML/TF.

e

Preventing Anonymity

Measures to prevent misuse of products or services that could favour or facilitate anonymity.

f

New Technologies

Controls to address ML/TF risks from new technologies, products, services, and delivery methods.

g

Suspicious Transaction Reporting Procedures for reporting suspicious transactions in a timely and appropriate manner.

h

Record Keeping

Systems for proper retention and access to AML/CTF-related documents.

i

Updating Customer Information

Ensuring that documents and information on customers are kept current.

j

Updating Risk Assessments

Procedures to ensure risk assessments remain up to date.

k

Emerging Risks

Internal systems to identify emerging risks and update business-wide assessments accordingly.

l

Compliance

Monitoring compliance with AML/CTF policies and ensuring internal communication of these policies.

Communication

Spring 2025 dsba.ie

Practice Management

Client assessment (Customer Due Diligence) Sections 33, 34, 37, 39 and 40 of the 2010 Act provide details on the obligations of solicitors in terms of customer [client] due diligence.

Section Identify and verify customer and ben33(1) eficial owner; understand purpose of relationship; monitor ongoing activity.

33(2)

Consider risk factors: purpose, assets, transaction volume, geography.

34

Simplified Due Diligence in low-risk cases.

35

Timing of CDD – before relationship starts unless exceptions apply.

37

Enhanced Due Diligence where higher risk exists (PEPs)

39

Enhanced Due Diligence where higher risk exists for other reason

40

Reliance on others for CDD

Matter evaluation Sections 33 and 54 of the 2010 Act provide detail on how assessment of each individual case should take place. Each new matter or file should be treated as a separate event requiring an assessment of: The nature and purpose of the work, The client and beneficial owner (if any), The relevant transaction or retainer.

Management of risk during the transaction Having successfully completed the customer due diligence and matter evaluation, it is still necessary to monitor compliance. The factors to be considered include: Any indication that the client or the client’s beneficial owner has changed;

Any transactions which are not reasonably consistent with the firm’s knowledge of the client; Any change in the purpose or intended nature of the firm’s relationship with the client; Any other relevant matter which comes to the attention of the firm; A record must be kept on ongoing monitoring.

Due diligence on the source of funds a. Underlying transactions – the firm cannot provide banking facilities through a client account and any payments into and payments out of the client account must relate to an underlying transaction or to a service forming part of the usual regulated activities carried on by the firm; b. Cash policy – the firm should hold a robust policy on the acceptance of cash payments. If cash is accepted, then it should be considered high risk where it concerns a large amount; c. Receipt of funds – to minimise the risk of third parties lodging money to the client account, firms should avoid disclosing the account details in so far as possible. Advise clients to contact the firm to double-check if they have been told that the firm’s bank account details have changed. Returning money to the client following an over-payment or an aborted transaction can be considered moneylaundering; d. Source of funds – the firm must have a clear policy on what is required of the client in order to prove source of funds/source of wealth. This should be established at the beginning of the transaction in order to protect the firm by identifying concerns at an early point.

Returning money to the client following an over-payment or an aborted transaction can be considered moneylaundering

Reporting obligations and making reports Section 42 of the 2010 Act provides that solicitors are obliged to “ eport to the arda S och na and the evenue Commissioners, as soon as practicable, any knowledge, suspicion or reasonable grounds to suspect that another

the Parchment 33

person is engaged in money laundering or terrorist financing.”

It is an offence to fail to make such a report. It is necessary to make such a report via the goAML portal.

For solicitors, there is an obligation to make certain reports to the Law Society of Ireland as the competent authority.

Solicitors play a vital Training role as Chapter Six of the 2010 Act provides the statutory gatekeepers, and framework for training in respect of anti-money and counter terrorist financing. Section 54(6) embracing this laundering provides that “a designated person shall ensure that persons involved in responsibility the conduct of the designated person’s business are a with vigilance, instructed on the law relating to money laundering and sound judgment, terrorist financing and b provided with ongoing training identifying a transaction or other activity that may be and professional on related to money laundering or terrorist financing, and how care is essential to proceed once such a transaction or activity is identified.”

This legislative provision means that all partners, assistant solicitors, fee-earners, and relevant employees must receive ongoing training in anti-money laundering and counter terrorist financing procedures including how to identify a suspicious transaction or activity and how to deal with such a matter should it arise. Training must be updated on an ongoing basis.

In order to demonstrate compliance with this statute, it is necessary to keep records of training. While the type of records to be kept are not prescribed, the kind of information which should be recorded includes: The assessment carried out to identify the training needs; The details of the individual, including his/her position or role in the firm, department, solicitor number (if appropriate), date of joining the firm; A summary of the topics; The date and time of such training; Details of the party who carried out the training.

The content of policies should form a core part of the training given.

Record keeping Solicitors, as designated persons under the Criminal ustice oney Laundering and Terrorist Financing Act 2010 (as amended), are required to keep comprehensive records that demonstrate compliance with their AML obligations. Section 55 of the 2010 Act provides that records of customer due diligence (CDD), the supporting documentation for transactions, internal and external reports, and the steps taken in applying risk-based measures must be retained for a minimum of five years after the relationship with the client has ended or after the date of the last transaction. The records must be sufficient to permit a reconstruction of individual transactions (Section 55(2) and (3)), and be readily accessible to competent authorities, including the Law Society and An Garda S och na. In practice, this means storing identification documents, correspondence, evidence of source of funds, and any records of suspicious transaction reports. Best practice, aligned with Section 54(3)(h) of the 2010 Act, includes the implementation of systems that ensure the secure storage of such records (digitally or physically), with appropriate safeguards for confidentiality and access control. Solicitors must also be aware of obligations 34 the Parchment

under the GDPR, ensuring that retention and destruction of personal data aligns with both AML law and data protection principles.

Monitoring compliance Ongoing monitoring is a cornerstone of an effective AML framework. Section 54 of the 2010 Act requires designated persons to establish and maintain policies and procedures to monitor and manage compliance with AML obligations. This includes regular evaluation of the firm’s systems, updating of the business risk assessment (as required under Section 30A), and maintaining awareness of emerging threats such as new technologies, high-risk jurisdictions, or typologies of criminal behaviour. Section 54(3)(l) explicitly refers to the requirement to monitor compliance and to ensure internal communication of policies. Firms are encouraged to designate a compliance partner to oversee implementation and internal oversight.

Periodic file audits, checklists at the opening and closing of files, and logs of compliance queries are practical tools that can evidence ongoing monitoring.

The Law Society’s AML Guidelines also emphasise the importance of internal reviews, clear reporting procedures, and documentation of actions taken in response to red ags. Compliance monitoring should be dynamic – adjusting policies as needed and ensuring that any procedural updates are effectively communicated to all staff, including through training and staff briefings.

Conclusion Compliance with anti-money laundering and counterterrorist financing obligations is both a statutory and ethical imperative for solicitors. While the legal framework can appear complex and cumbersome, it ultimately serves to protect the integrity of the legal profession and the wider financial system. Solicitors play a vital role as gatekeepers, and embracing this responsibility with vigilance, sound judgement, and professional care is essential. Firms are encouraged to embed AML procedures into daily practice and to cultivate a culture of awareness, accountability, and continuous learning. Ongoing staff training, internal review, and timely reporting are not just compliance measures – they are expressions of our professional values. For support in navigating these duties, solicitors can consult Law Society of Ireland’s Anti- oney Laundering uidance otes (available on the Society’s website) www.lawsociety.ie/aml, Solicitor’s uide to Professional Conduct 4th ed. , the Law Reform Commission’s Revised Acts website at revisedacts.lawreform.ie, which provides a userfriendly, consolidated version of the Criminal Justice oney Laundering and Terrorist Financing Act 2010, incorporating all amendments to date without the need to cross-reference multiple legislative texts.

The Law Society’s Regulation Department and AML Unit are also available to provide assistance and answer queries.

In a legal environment where scrutiny is increasing and risks are evolving, the well-prepared solicitor – alert, informed, and ethically grounded – is best placed to meet these challenges and uphold the profession’s commitment to justice and public trust. P

Dublin Dispute Resolution Centre Ireland’s premier dispute resolution venue

At the DDRC, we take pride in delivering exceptionally high-quality meeting spaces and supplementary services in close proximity to the Four Courts complex.

Key features of our center Neutrality: DDRC serves as a neutral venue for all parties. Conveniently located in the heart of Dublin's legal community, we are easy to access.

Prime location: on the first floor of the Distillery Building, DDRC offers the perfect setting for consultations, arbitrations, mediations, and settlements.

Fully serviced and accessible for all users: we take care of all your business needs. DDRC guarantees a seamless, positive experience.

Flexible hours: meetings can be unpredictable, so we operate 24/7, allowing your meeting to progress in whichever way suits you.

CONTACT US NOW FOR MORE DETAILS Distillery Building, 145-151 Church Street, Dublin D07 WDX8, Ireland.

Tel +353 (0)1 817 5277, Email: info@dublinarbitration.com

OPEN 24/7

New Injunctive-type Relief in the District Court Keith Walsh SC considers new developments in the District Court which will benefit those subject to many forms of unwanted behaviour These new Civil Orders are contained in section 28 of the Criminal Justice (Miscellaneous Provisions) Act 2023 which commenced on the 2nd September 2024

Introduction In its 2016 Report on Harmful Communications and Digital Safety (LRC 116-2016), the Law Reform Commission recommended the introduction of Civil restraining Orders in legislation – and on the 2nd September 2024 new measures were introduced which enable victims of harassment, stalking and other unwelcome behaviour to seek Civil Orders restraining another person from certain behaviour. As can be seen later in this article, there is a very wide range of behaviour which comes within this new law.

The grounds for the Civil Orders mirror the grounds which constitute the recently created offence of stalking contained in section 10 of the Non-Fatal Offences Against the Person Act 1997 as inserted by section 23 of the Criminal Justice (Miscellaneous Provisions) Act 2023.

The standard of proof for Civil Orders is the Civil standard which may permit earlier intervention by those affected by the behaviour. Applicants may have both a Civil and a criminal law remedy and, similarly to Orders made under the Domestic Violence Act 2018, breach of a Civil Order is a criminal offence.

Fish or fowl – are these Civil or Family Law Matters?

Applications for these new Orders and related matters are to be made in camera. However, these proceedings are Civil proceedings and not family law proceedings so stamp duty is payable on court documents. Civil legal aid is available for applications but unlike applications for domestic violence, no private practitioner scheme 36 the Parchment

has yet been set up so cases are being dealt with by staff of the Law Centres. 48 applications to Court were received in the first month of introduction of these Orders and 15 interim Orders were made with 11 full restraining Orders being made. [source: Women’s Aid/ Courts Service]. It is likely that these new Civil Orders will create further additional work for the District Court offices and Judges as awareness of the Orders grows.

Eligibility and Grounds These Orders can be applied for by any person or a member of the Garda Siochana on behalf of an applicant (S28(1)). A Court may make a Civil Order where it is of the opinion that: (i) there are reasonable grounds for believing that the respondent has engaged in relevant conduct towards the applicant or, where relevant, a person connected to the applicant, and (ii) the making of the Order is, in all of the circumstances, necessary for, and proportionate to, the purpose of protecting the safety and welfare of the applicant (S28(3)).

Relevant Conduct Relevant conduct means conduct engaged in, without lawful authority or reasonable excuse, by the respondent towards the applicant or, where relevant, a person connected to the applicant, that would reasonably be considered likely to cause the applicant – (a) to fear that violence will be used against the applicant or person, or

Spring 2025 dsba.ie Keith Walsh SC is a Dublin solicitor practising primarily in the area of family law and family disputes. He is a former President of the DSBA

Civil / Family Law

(b) serious alarm or distress that has a substantial adverse impact on his or her usual day-to-day activities.

Relevant conduct also includes, without prejudice to the generality of (a) and (b) in the previous paragraph, the following: (a) following, watching, monitoring, tracking or spying upon a person; (b) pestering a person; (c) impersonating a person; (d) communicating with or about a person; (e) purporting to act or communicate on behalf of a person; (f) disclosing to other persons private information in respect of a person; (g) interfering with the property (including pets) of a person; (h) loitering in the vicinity of a person; (i) causing, without the consent of the person, an electronic communication or information system operated by a person to function in a particular way (S27(3)).

Effect of a Section 28 Order A Section 28 Order may prohibit the respondent from doing any or all of the following in respect of the applicant or, where relevant, a person connected to the applicant: (a) using or threatening to use violence against, molesting or putting in fear the person; (b) following or communicating by any means with or about the person; (c) approaching, within such distance as the court shall specify, the place of residence, education or employment of the person; (d) engaging in such other forms of relevant conduct as the court specifies (S28(4)).

The Order may be subject to such exceptions and conditions as the court specifies (S28(5)).

Duration of Section 28 Order Up to five years (S28(6)).

Ex Parte and Interim Section 28 Orders An ex parte application for a Section 28 Order can be made provided it is grounded on an affidavit or information sworn by the applicant (S28(7)).

The grounds for granting a Section 28 Order on an ex parte application are where the Court, “having regard to the particular circumstances of the case, is of the opinion that there are reasonable grounds for believing that there is an immediate risk to the safety and welfare of the applicant” (S28(8)).

A Section 28 Order made ex parte may last for up to eight days or such shorter time as may be specified in the Order (S28(9)).

An Interim Section 28 Order can be made on an application for a Section 28 Order on notice to the respondent, or at any time between the making of that application and its determination “where it is of the opinion that it is necessary and proportionate to do so for the purpose of protecting the safety and welfare of the applicant” (S28(8)). The interim Order ceases to have effect on the determination by the court of the substantive application for a section 28 Order.

While section 28(16) states that the validity of the Interim Section 28 Order will not be affected by non-compliance with the requirements for service of the Order, this will depend on the circumstances of the case and any non-compliance with notification of

the respondent with a copy of the Interim Section 28 Order (or any Order made under Section 28) where the respondent was not aware of the making of the Order is likely to cause significant difficulties: see DPP v R.K. [2019] IEHC 852. Section 34(1) states that “a relevant Order shall take effect on notification of the making of the Order concerned being given to the respondent”.

Procedural elements of Section 28 Orders The procedural elements of Section 28 Orders made under the 2023 Act appear to be based on similar measures contained in the Domestic Violence Act 2018.

The 2023 Act contains similar provisions to the 2018 Act in relation to variation or discharge of Civil Orders (S29), protection against cross examination by applicant or respondent (S32), requirement for the Court to give reasons for certain decisions (S33), taking effect of Civil Orders (S34), copies of Orders to be given to certain persons (S35), jurisdiction being District or Circuit Court (S36), special sittings of District Court where no District Court sitting (S38), evidence to be permitted through television link for Civil proceedings in certain circumstances (S39), right to be accompanied in certain circumstances (S40).

48 applications to Court were received in the first month of introduction of these Orders and 15 interim Orders were made with 11 full restraining Orders being made

Breach of a Section 28 is an offence The creation of an offence for breach of a Civil Order which carries a penalty, on summary conviction to a class B fine or to imprisonment for a term not exceeding 12 months (S44) and the powers of arrest without warrant (s44) granted are also similar to those provided for under the 2018 Act. The prohibition on publication or broadcast of certain material relating to the offence created is also similar (S46).

Civil Restraint Orders can be made at the same time as an application for an Order under the Domestic Violence Act for a protective Order Section 15 of the Domestic Violence Act 2018 currently permits the Court when hearing an application under the 2018 Act to hear related matters, namely applications under section 11 of the Guardianship of Infants Act 1964, sections 5, 5A, 5B, 6, 7 or 21A of the the Parchment 37

Family Law (Maintenance of Spouses and Children) Act 1976, section 5 or 9 of the Family Home Protection Act of 1976, the Child Care Act of 1991 or section 30, 34 or 45 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 without the necessity for institution of proceedings.

To this list of related matters is now added applications under Part 5 of the Criminal Justice (Miscellaneous Provisions) Act 2023. This provides further additional Civil law options for victims of domestic violence and offers more opportunities for Section 28 Orders to be made.

Section 82(a) of the Criminal Justice (Miscellaneous Provisions) Act 2023 amends section 15(2) of the Domestic Violence Act 2018 by permitting the Court, where an application is made to it for an Order under the Domestic Violence Act 2018, to make an Order under Part 5 of the Criminal Justice (Miscellaneous Provisions) Act 2023, without the institution of proceedings under the 2023 Act. This greatly increases the discretion of the District Court Judge dealing with an application for an Order under the Domestic Violence Act 2018 to make a Civil Order where needed. P

TABLE – comparison of the new Civil Orders against relevant conduct with Safety, Barring and Emergency Barring Orders *this table does not include ex parte or interim Orders such as Protection Orders, Interim Barring Orders, Ex Parte Civil Orders or Interim Civil Orders Criteria

Civil Orders against relevant conduct

Safety Order

Barring Order

Emergency Barring Order

Law

Section 28 Criminal Justice (Miscellaneous Provisions) Act 2023

Section 6 Domestic Violence Act 2018

Section 7 Domestic Violence Act 2018

Section 9 Domestic Violence Act 2018

Who can apply

Anyone or

(i) Spouse, former spouse (ii) Civil Partner (iii)Person in an intimate relationship with respondent prior to application provided not spouse or Civil partner and not related to prohibited degree (iv)Parent provided child respondent not dependent (v) full age residing with respondent in a relationship the basis of which is not primarily contractual (vi) parent of a child whose other parent is the respondent

(i) Spouse, former spouse (ii) Civil Partner (iii) Person in an intimate relationship with respondent provided not spouse or Civil partner and provided not related to prohibited degree and provided applicant’s legal and beneficial ownership in the residence not less than that of the respondent (iv) Parent provided child respondent not dependent

(i) Person in an intimate relationship with respondent prior to application provided not spouse or Civil partner and not related to prohibited degree (ii) Parent provided child respondent not dependent (iii)The court may only make an Order in relation to a place where the applicant or a dependent person resides and where the respondent has a legal and beneficial interest but the applicant has no such interest or the applicant’s legal or beneficial interest is, in the opinion of the court, less than that of the respondent

a member of the Garda Siochana on behalf of an applicant

CFA may also make an application on behalf of above

CFA may also make an application on behalf of above

Grounds for Order

The Court may make an Order where it is of the opinion that (a) there are reasonable grounds for believing that the respondent has engaged in relevant conduct towards the applicant or, where relevant, a person connected to the applicant, and [see definition of relevant conduct below] (b) the making of the Order is, in all of the circumstances, necessary for, and proportionate to, the purpose of protecting the safety and welfare of the applicant

38 the Parchment

Court must be of the opinion there are reasonable grounds for believing the safety or welfare of the Applicant or a dependent person so requires it

CFA may also make an application on behalf of above Court must be of the opinion there are reasonable grounds for believing the safety or welfare of the Applicant or a dependent person so requires it

The Court must take into account any other family law Orders made or to be made and must be of the opinion that there are reasonable grounds for believing there is an immediate risk of significant harm to the Applicant or dependent person if an Order is not made immediately

Spring 2025 dsba.ie

Civil / Family Law

Effect of Order

May prohibit the respondent from doing any or all of the following in respect of the applicant or, where relevant, a person connected to the applicant: (a) using or threatening to use violence against, molesting or putting in fear the person; (b) following or communicating by any means with or about the person; (c) approaching, within such distance as the court shall specify, the place of residence, education or employment of the person; (d) engaging in such other forms of relevant conduct as the court specifies Relevant conduct is defined in S27(2) of the Criminal Justice (Miscellaneous Provisions) Act 2023 as meaning conduct engaged in, without lawful authority or reasonable excuse, by the respondent towards the applicant or, where relevant, a person connected to the applicant, that would reasonably be considered likely to cause the applicant: (a) to fear that violence will be used against the applicant or person, or (b) serious alarm or distress that has a substantial adverse impact on his or her usual day-to-day activities.

Without prejudice to the generality of the above subsection (2) the conduct referred includes the following: [non exhaustive list] (a) following, watching, monitoring, tracking or spying upon a person; (b) pestering a person; (c) impersonating a person; (d) communicating with or about a person; (e) purporting to act or communicate on behalf of a person; (f) disclosing to other persons private information in respect of a person; (g) interfering with the property (including pets) of a person; (h) loitering in the vicinity of a person; (i) causing, without the consent of the person, an electronic communication or information system operated by a person to function in a particular way.

Prohibits the respondent from doing one or more of the following: • Using or threatening to use violence against, molesting or putting in fear, the applicant or the dependent person • If he or she is residing at a place other than where the applicant or that dependent person resides, watching or besetting a place where the applicant or the dependent person resides • Following or communicating (including by electronic means) with the applicant or the dependent person The court when making the Order may recommend to a respondent that he or she engage with a programme or service to address any issue relating to his or her behaviour which contributed to the application for the Order being made including: (a) a programme for perpetrators of domestic violence, (b) an addiction service, (c) a counselling or psychotherapy service, or (d) a financial planning service The Order is subject to such exceptions and conditions as the court may specify

Note: the Civil Restraint Order may prohibit some, all or none of the behaviour set out at (a)-(i) above The Order is subject to such exceptions and conditions as the court may specify Length of Order

Up to five years in the District Court

Up to five years in the District Court

Directs the respondent if residing at a place where the applicant or the dependent person resides, to leave to place, and whether the respondent is or is not residing at that place, prohibits the respondent from entering the place where the applicant and the dependent person reside, until such further Order of the court or until such other time as the court may specify AND may also prohibit the Respondent from doing one or more of the following: • Using or threatening to use violence against, molesting or putting in fear the applicant or the dependent person • If he or she is residing at a place other than where the applicant or that dependent person resides, watching or besetting a place where the applicant or the dependent person reside • Following or communicating (including by electronic means) with the applicant or the dependent person The court when making the Order may recommend to a respondent that he or she engage with a programme or service to address any issue relating to his or her behaviour which contributed to the application for the Order being made including: (a) a programme for perpetrators of domestic violence, (b) an addiction service, (c) a counselling or psychotherapy service, or (d) a financial planning service The Order is subject to such exceptions and conditions as the court may specify

Directs the respondent if residing at a place where the applicant or the dependent person resides, to leave to place, and whether the respondent is or is not residing at that place, prohibits the respondent from entering the place where the applicant and the dependent person reside for such period not exceeding 8 working days, as is specified in the Order AND may also prohibit the Respondent from doing one or more of the following: • Using or threatening to use violence against, molesting or putting in fear, the applicant or the dependent person • If he or she is residing at a place other than where the applicant or that dependent person resides, watching or besetting a place where the applicant or the dependent person reside • Following or communicating (including by electronic means) with the applicant or the dependent person The court when making the Order may recommend to a respondent that he or she engage with a programme or service to address any issue relating to his or her behaviour which contributed to the application for the Order being made including: (a) a programme for perpetrators of domestic violence, (b) an addiction service, (c) a counselling or psychotherapy service, or (d) a financial planning service The Order is subject to such exceptions and conditions as the court may specify

Up to three years in the District Court

Not exceeding working eight days

the Parchment 39

60 Years on the Statute Book Anne Marie Maher BL takes the opportunity to review the important aspects of section 117 and considers some potential future developments

S

ection 117 of the Succession Act, 1965 (“s.117”) contains the provisions for the rights of children, limiting the power of a testator to dispose of their property. Unlike the legal right share of the spouse, a child is not given an absolute right to any portion of their parent’s estate. Instead, an application to the court is necessary, and a court may order whatever provision it deems just to be made out of the net estate. There is no denying that this discretionary aspect of the section has provided greater exibility than that of the fixed share, providing tailor-made justice for claimants. The aim of this article is to highlight the main features and developments of the section and consider some potential future amendments.

Key Features The claimant must be a child of the testator.

Currently s.117 applies only where a person dies wholly or partly testate. The provision is not automatic, a court application is required. The statutory test is whether the testator has failed in their moral duty to make proper provision. The time for considering whether there has been a failure is the date of death. The court considers the application from the point of view of a prudent parent.

Where an order under s.117 is made it cannot affect the legal right of a surviving spouse, or if the surviving spouse is also the parent of the claimant an order under s.117 cannot affect a devise or bequest (or a share on intestacy) to that surviving parent.

Therefore, when the entire estate of a testator is left to a surviving spouse who is also the parent of the claimant, an order under s. 117 cannot be made.

40 the Parchment

It is well established that the court’s decision consists of a two-stage process. First, the court must determine whether the testator has failed in their moral duty to make proper provision. Only after the claimant has met the relatively high onus and demonstrated a positive failure in the moral duty owed can the court proceed to the next stage, of deciding what provision is appropriate to satisfy the moral obligation in question. Since the moral duty can be discharged during the testator’s lifetime there may be no obligation on a testator to leave a child anything on death.

Legal Principles The principles relating to the exercise of the jurisdiction of the court under s.117 are well established and although each case turns on its own facts, a good starting point is the judgment of Kenny J. in Re. G.M. : F.M. v T.A.M. (1970) 106 I.L.T.R. 82, in which Kenny J. stated: “It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death, and must depend upon a the amount left to the surviving spouse, or the value of the legal right if the survivor elects to take this; b the number of the testator’s children, their ages, and their positions in life at the date of the testator’s death; c the means of the testator; d the age of the child whose case is being considered, and his or her financial position and prospects in life; e whether the testator has already in his lifetime made proper provision for the child.”

These principles have been repeatedly applied by the courts and were specifically endorsed by the Supreme Court in C.C. and Ch. F. v W.C. and T.C. [1990] 2 IR 143, wherein Finlay C.J. approved them subject to the following qualification: “I am satisfied that the phrase …. ‘failed in his moral duty to make proper provision for the

Spring 2025 dsba.ie Anne Marie Maher is a barrister with a specialist practice in Chancery Probate, Succession Law and Trust Litigation

child in accordance with his means’ places a relatively high onus of proof on an applicant for relief under the section.”

Another decision which is an essential read for practitioners advising clients on s.117 is in Re ABC deceased; XC v RT [2003] 2 IR 250. In this decision, the High Court took the opportunity to provide a summary of all of the principles that had emerged up to that date, and incorporated them into one judgment, thus providing clear guidance to legal advisors.

Whilst the social policy underlying s.117 may have been directed to protecting children who were still of an age and situation in life where they might have expected support from their parents, we now know that age is no barrier to relief. In G.S. v M.B. [2022] IEHC 65, the High Court made provision for a 65-year-old applicant. The decision provides an example of the courts’ willingness to make provision for even mature adult children.

Further Reflections S.117(6) of the Act as amended by s.46 of the Family Law (Divorce) Act 1996 provides that: “An order under this section shall not be made except on an application made within six months from the first taking out of representation of the deceased’s estate.” Thankfully, s.117(6) was clarified by Laffoy J. in In Re Estate of F deceased; SI v PRI and another [2013] IEHC 407, concluding that limitation period starts from the date upon which the will is proved either by grant of probate or grant of letters of administration with the will annexed – therefore, not from the date of a limited grant despite it being the first grant to issue.

There is no provision for an extension of this

limitation time. Given that the six-month period is exceptionally short, fixed and unextendable, there are stark consequences for a minor or an adult child who lacks capacity whose claim is not brought within the six-month period. It seems to me that the existing time limitation is crying out for exibility to safeguard the interests of those perhaps most in need of provision. For that reason, there are compelling reasons to amend the section to confer on the court a discretion to extend the time limit within which applications can be made.

This issue was examined in the Law Reform Report: s.117 of the Succession Act, 1965: Aspects of Provisions for Children, (LRC 118-2017), (“the 2017 Report”). Ultimately, it was the view of the Commission that the advantages associated with providing for judicial discretion to extend the time limit would be outweighed by the disadvantages of uncertainty over the administration of estates.

While currently s.117 does not apply to intestate estates, extending the section to intestate estates was also examined in the 2017 Report. Ultimately the extension was recommended by the Commission.

This would represent an enormous development of the section. It would overcome the current limitation, that only a child of a parent who makes a will can seek additional provision to be made for them, notwithstanding a clear need exists. For the law to be applied also to intestate estates would be completely within the spirit of the jurisprudence.

The standard imposed on a parent under s.117 is that of a “just and prudent parent” and this may, and often does, necessitate treating children differently based on their individual circumstances, and this should in the writer’s view be irrespective of whether there is a will or not. P

Probate Litigation

It seems to me that the existing time limitation is crying out for exibility to safeguard the interests of those perhaps most in need of provision

the Parchment 41

42 the Parchment

Spring 2025 dsba.ie

Interview

Chain of Distinction Solicitor Peter Keane holds the prestigious Mayoral chain for the city of the tribes. Parchment editor John Geary had a coffee with him on the banks of the river Corrib and they talked law, politics and more

T

he office of Mayor of Galway was created by a charter issued by King Richard III of England in 1484 at the solicitation of merchants from the city s leading families, known as the Tribes of Galway. For centuries, the position has been highly coveted, and the first citi en of the city leads a population of 85,910 (2022 census) – the fourth largest city in the Republic.

The Local Government Act 2001 introduced changes to Mayoral roles across the country and pursuant to section 11 of the Act, it is a symbolic role: "Subject to this Act, royal charters and letters patent relating to local authorities shall continue to apply for ceremonial and related purposes in accordance with local civic tradition but shall otherwise cease to have effect."

Section 31 (3) of the 2001 Act goes on to state the chairman of the Council must be styled the Cathaoirleach and that "Any reference in any other enactment to the lord mayor, mayor, chairman, deputy lord mayor, deputy mayor or vice-chairman or cognate words shall, where the context so requires, be read as a reference to the Cathaoirleach or Leas-Cathaoirleach or other title standing for the time being."

Step forward Peter Keane. He qualified as a solicitor in 2001 after an invaluable

I was not a member of the party, but I did have Fianna Fáil in my blood. I had no interest in running for elected office

apprenticeship with Paddy Keane in his native city after a commerce degree and an LLB at what was then known as UCG. There was no legal or political lineage – his father was a Garda Sergeant and his mother a GP. Peter is managing partner of E.P. Keane and Company Solicitors. Together with his brother Eamonn, they have offices in Galway City and in the Capel Building, Dublin 7. He is married to Fiona Lydon, a District Court Judge.

He was first elected in 2009 after Fianna F il approached him to run for the city council. “I was not a member of the party, but I did have Fianna F il in my blood. I had no interest in running for elected office.

I ran them But they came a second time and asked me to reconsider. I spoke to my dad about the prospect and he encouraged me to put my name forward. My Mum too was a huge in uence.”

Not only did Peter get elected in 2009, but he has been returned on each occasion to Galway City Council since, with election victories in 2014, 2019 and 2024. He recalls being very proud to get the seat for Fianna F il in that local electoral area in 2009 as the party did not have a seat in that area the Parchment 43

I mean, everything I do in law, I genuinely have the President of the High Court sitting on one shoulder and I have the Law Society sitting on the other shoulder in every single decision I make on a daily basis back then. He believes that political life is a vocation.

Early days Prior to going down the legal route, Peter worked in hospitality and retail and says that nothing can give you a better grounding for clients than dealing with the general public. He worked for Staunton Sports (now Elverys), who had seven or eight shops and who went on to have do ens more.

Having completed his LLB, Paddy Keane (no relation) offered Peter an apprenticeship.

“He had a big litigation and general practice and was never afraid to throw you in the deep end. There was plenty of court and attending on barristers. At the time we did a lot of Licensing for the pubs and restaurants around alway City.

I got a very good grounding off Paddy. I went on to mainly practise commercial and residential 44 the Parchment

conveyancing as well as personal injuries litigation. After 1 years with Paddy and I really enjoyed my time there, Eamonn and I decided to establish our own practice.”

Eamonn and Peter (E.P.) Keane set up shop in 2013 and post-recession, it was as good a time as any to take the plunge.

Recalling how the firm started small, he explains how thankful he is that the practice has gone from strength to strength and that having a presence in Galway and Dublin has worked well. “ e have three solicitors at the moment and support staff and if I am honest, I don’t want to become a large practice. I concentrate predominantly on commercial and residential conveyancing and a considerable amount of my time is taken up with childcare law where I advocate for the voice of children in childcare proceedings.”

Wearing both hats, political and legal, Peter says that the Government have not been afraid to commit resources in the area of childcare. He points out that perhaps the public do not see the level of resources and expertise being directed towards childcare and protecting those who are most vulnerable.

“These children are born into very unfortunate, sometimes very distressing circumstances where you see addiction and domestic violence and I see it first hand because I advocate, I am the voice of those children in childcare proceedings. It shows you that as a State, Ireland takes this very seriously. Ireland is not afraid to commit resources to it in the interests of driving an agenda that protects children. It needs a lot of improvement in certain areas and certainly resources need continual commitment. Tusla have a tough job to do and if they don’t act fast enough, they are blamed and if they act too fast, they are blamed. So, in a lot of cases, you dovetail with them.”

As a solicitor acting in an independent role, he stresses that the objective is to the child so that they have the very best opportunity, and it is the most paramount consideration in any decisions that are being made. He says that this has to be balanced with the child’s constitutional right to have the company of their parents and points to monthly review of cases in Court under the Childcare Act. Managing a very busy legal career with elected politics came with its challenges but Peter says that there are huge intersections between both and that bringing a legal skillset to the Local Authority is a significant bonus.

“As an elected representative of the people, your primary function is to legislate for your constituents. ther political representations such as medical cards, road repairs, housing or hedge cutting may be secondary matters to legislative provisions. e have two main functions as Councillors and that is to adopt a budget for our city on an annual basis and this year, we will run a budget in Galway City of about €147 million and the second thing is that you legislate. I love the legislative side of things.”

Peter drafted and proposed the City Council’s bye laws under the Local Government Act for the prohibition of alcohol consumption in certain public areas.

The Bye Laws were adapted and passed in 2015 and were based against the backdrop of Galway being a major tourist destination.

The prevalence of beer cans being drank in Eyre Square or at the Spanish Arch fell off.

He says the good thing about Bye Laws is that they give the power to the City Manager in consultation with the local Superintendent to designate areas where people can have a drink in a public space at certain times of the

Spring 2025 dsba.ie

Interview

Photography: Murt Fahy

year under the right control and supervision.

He was unanimously elected as Mayor on the 5th June 2024 for a period of one year.

“It is a phenomenal role. I’m into my 1 th year of being a Councillor and what a total honour it is to be the ayor of alway. I love meeting people, I love meeting different groups, I love the public speaking, I love the interaction. I really enjoy the role of chairing the meetings, I enjoy chasing e ciency, I don’t have much tolerance for nonsense and that has shone through I believe in the manner in which I have sought to chair the plenary sessions at the City Council since une.”

Mayor Keane explained that the bigticket item in Galway is the challenge with transport and delivery of the Galway transportation strategy. This strategy involves the delivery of the outer relief ring road and a suite of transport initiatives through active travel, through encouraging more public transport, encouraging more walking and cycling.

He is a proponent of a light rail system for Galway city – a concept that has been mooted for decades, but he is also a realist.

“The Government in the National Development Plan have committed to the Galway City outer ring road. That’s a project when last costed was somewhere around 1 million. overnment has also committed to funding a Galway Transportation strategy which when adopted in 2020 and 2021 was costed at 2 0 million. So is Government then going to look at funding a light rail system for Galway at an additional potential 00 million to bring us well over 1.1 billion to solve our transport woes. I don’t think that will happen any time soon.”

Challenges and Collegiality Peter outlines a myth that seems to exist that having your own practice is the best thing ever. He says that the pressures of practice and in particular the non-client administration work is always a challenge.

“I genuinely find that 2 0 of my day is ensuring that we are compliant and that boils down to systems and the better your systems are then clearly the more compliant you are going to be. n top of every file that’s opened in your o ce, you have risk assessment. Are your A Ls up to date, has your Section 1 0 otice gone out the minute you have a first consultation with a client.

I mean, everything I do in law, I genuinely have the President of the High Court sitting on one shoulder and I have the Law Society sitting on the other shoulder in every single decision I make on a daily basis. Do I make apologies for it, no I don’t.

Thank God we get up every day and we try and do things to the letter of what we have been taught in accordance with a set of principles that we have which is to help people.”

As solicitors, he says that we have good job satisfaction, but it comes with a

phenomenal amount of stress. He is grateful that he can channel and control such stress in an energetic way towards solutions. He has a mantra of keeping an eye on the pri e’.

He admires and cherishes collegiality. “It’s something I try to instil on anybody who has come through that door to work for me, and it is pick up the phone, don’t write it in five pages if you can deal with a colleague over the phone and have a chat. If you’re in bother over a missing Deed of Release and you ring a colleague in the outside hope that they might please help you to track down a lost Deed of Release of a Mortgage from 1982 and two days later they ring you back and say they found it!

That’s the beauty of law for me and the beauty of

collegiality. Collegiality will trump everything in my view.”

His fundamental core principles are those based on ethics, and he credits Paddy Keane for instilling in him to never lose sight of the important things - like: never leaving Court without bowing to a Judge on the bench or never taking a Garda short.

He recalls his former Master saying to him put the books away, this is about getting the smell off a fella, seeing the white of his eye and see if you can problem solve’. He hasn’t forgotten that very straight advice given to him a quarter of century ago. P the Parchment 45

Update on Ground Rents Entitlements Ruth Cannon BL assesses the law and procedure on the purchase of ground rents and various issues arising

Introduction

Permanent building

‘Buying out the Ground Rents’ is a term of art used to refer to the entitlement under the Landlord and Tenant round ents Acts 1 -200 of a lessee or yearly tenant to acquire for a significantly below-market sum the interests of all superior owners in the property, exercised by applying to the Registrar of Titles for a Vesting Certificate (if the building on the property was constructed as a dwelling house and is so used) or to the County Registrar (if it is not).

The crucial statutory provision in determining such entitlement is the Landlord and Tenant round ents o. 2 Act 1 . Where the tenant holds under a lease (defined as a written contract of tenancy), the appropriate criteria are those set out in Section 9 of the 1978 (No. 2) Act. early tenants can buy out by satisfying the criteria in Section 15.

Certain State landlords and North-South bodies are excluded from the scope of the Ground Rents Acts.

ason v Leavy [1952] IR 40 held that an underground concrete well for a petrol storage tank was a building, whereas a hoist set in concrete was not. Fit gerald v Corcoran [1991] ILRM 545 found that neither a hard tennis court nor a car park were permanent buildings.

Recently in Prime P2 Ltd v Dublin Technological University [2021] IEHC 88 involving two different lease premises, the latter with only a fire escape on it, yland held that there was no entitlement to buy out in respect of the latter property, since a fire escape could not be a permanent building.

Entitlement to buy out the fee simple under Section 9 of the 1978 (No. 2) Act To qualify under Section 9: i. The applicant must hold under a lease (defined as a written contract of tenancy). ii. There must be a permanent building on the premises. iii. The building must not be an improvement. iv. Any vacant land included must be subsidiary and ancillary to the building. v. The buildings must not have been erected in breach of covenant. vi. One of the conditions in Section 10 of the 1978 (No. 2) Act must be satisfied. vii.None of the restrictions in Section 16 may apply.

46 the Parchment

Subsidiary and ancillary In enny omes v Leonard, unreported, 11 December 1997, it was held that a car park was not subsidiary and ancillary to a kiosk at the entrance to same and used for collecting money from its users; rather, the reverse was the case, and the kiosk was subsidiary and ancillary to the car park. In Fit gerald v Corcoran [1991] ILRM 545 it was held that tennis courts were not subsidiary and ancillary to a clubhouse. Dursley v aters [1993] 1 IR 224 found that a garage forecourt on which manual car washing was carried out could not be subsidiary and ancillary to the small hut in which the owner of the car wash business kept his equipment.

In ’ orman v S oldings Ltd [2005] IEHC 168 an area of waste ground adjacent to a supermarket and solely used for the parking of cars by its staff, the incineration of rubbish, and the assembling of empty pallets and containers was held to be subsidiary and ancillary to the supermarket. In contrast, in illeen v. aron Talbot de alahide [1951] Ir. Jur. Rep. 19, a field separated from the relevant building by a fence and

Spring 2025 dsba.ie Ruth Cannon is a practising barrister and lecturer in law at the Technological University of Dublin

rented out to a third party, was not subsidiary and ancillary.

Not erected in breach of covenant Section 9(2) states that the right to buy out the fee simple does not apply if the buildings on the property were erected in breach of a covenant in the Lease.

However, subsection 5 of the same section states that, in the case of an application to purchase the fee simple by arbitration, the arbitrator may declare a person to be a person to whom this Part applies notwithstanding that the buildings were, in whole or in part, erected in contravention of a covenant, if he is of opinion that it would be unreasonable to order otherwise.

In ’ orman v S oldings Ltd [2005] IEHC 168, Peart J permitted the purchase of the fee simple where alterations to a building had been carried out without the prior consent in writing of the landlord, retrospective consent subsequently being given to some but not all of these works, stating that he might not have done so had the tenant deliberately and consciously set about ignoring his obligations under the covenant in the belief that the landlord would refuse his consent, or was otherwise badly motivated.

One of the conditions in Section 10 must apply Section 10 of the 1978 (No. 2) Act contains seven alternative conditions, one of which must be satisfied for a tenant to be able to buy out the fee simple. The conditions most usually relied on are 1, 2 and 7.

Condition 1 as interpreted in ’ orman v S oldings Ltd [2005] IEHC 168 requires all the permanent buildings on the property to have been

Landlord and Tenant

erected by the applicant or a predecessor in title under the lease. Buildings erected by an original tenant under the lease prior to the grant of the lease qualify for this purpose if erected pursuant to an agreement with the lessor to grant the lease on completion of the buildings.

A very significant change to Condition 1 was effected by the Landlord and Tenant round ents Amendment Act 201 , which extends its reach to include a situation where a tenant or their predecessors have altered or reconstructed a subsisting building so as to cause it to lose its original identity. The amendments effected by the 2019 Act provide that, in deciding whether or not the subsisting building has lost its original identity, regard may be had to all or any of the following: a change in the use of the building; the extent of any alteration or reconstruction; a change in the character of the building, and such other matter as the arbitrator considers relevant, and further provides that a finding that a subsisting building has lost its original identity may be made even where part or parts of the subsisting building remain identifiable.

Condition 7 of Section 10 as amended by the Landlord and Tenant Amendment Act 1 0 applies where the lease is for 50 years or more and was made in consideration of the payment of a lump sum and/ or the expenditure of a specified amount of money on the property and/or the carrying out of specified works thereto in circumstances where the lump sum/ money amount/reasonable cost of the specified works is 15 times or more the annual rent.

Condition 2 of Section 10 applies where: “the lease is for a term of not less than 0 years and the yearly amount of the rent or greatest rent reserved thereunder

Section 9(2) states that the right to buy out the fee simple does not apply if the buildings on the property were erected in breach of a covenant in the Lease

the Parchment 47

Landlord and Tenant

whether redeemed at any time or not is of an amount that is less than the amount of the rateable valuation of the property at the date of service under section 4 of the Act of 1 of notice of intention to ac uire the fee simple or the date of an application under Part III of the Act, as the case may be, and the permanent buildings on the land demised by the lease were not erected by the lessor or any superior lessor or any of their predecessors in title provided that it shall be presumed, until the contrary is proved, that the buildings were not so erected.”

Fennelly , delivering the judgment of the Supreme Court in Shirley v A. ’ orman Co. Ltd [2012] IESC 5 held that Condition 2 must be interpreted in accordance with the presumption of constitutionality, which in turn required that predecessors in title’ be interpreted as including lessees under previous leases, thereby permitting the lessor to rebut the presumption by proving that the building had been erected by such a lessee. Subsequently, the Landlord and Tenant round ents Amendment Act 201 amended Condition 2 to provide that ‘predecessors in title’ for the purposes of that Condition “shall not be taken to include a reference to any previous lessee of the land demised by the lease”. Having regard to the above dictum of Fennelly , the constitutionality of this amendment must be open to question.

There remain several questions about various provisions in the legislation, in particular the changes introduced by the 2019 Act and the extent to which the presumption of constitutionality should play a part in their None of the restrictions in Section 16 may apply interpretation

which is restricted in whole or in part to dealing in commodities produced or supplied by the lessor, nor in respect of a lease containing a covenant by the lessee to erect a building or buildings or carry out development on the land if and so long as the covenant has not been substantially complied with.

Sections 16(2)(d) and (e) exclude the right to buy out the fee simple in respect of leases made by the Commissioners of Irish Lights or a harbour authority.

They are subject to Section 70 of the Landlord and Tenant Amendment Act 1 0 which provides that, where such property is a dwellinghouse, the tenant shall be entitled to buy out the fee save where the landlord is satisfied that such acquisition would not be in the public interest and so certifies.

Section 16(2)(f) was inserted by the egistration of Deeds and Title Act 200 to prevent a lessee not entitled to acquire under the Ground Rents artificially creating such entitlement by creating a sub-lease which satisfied the statutory requirements. It restricts a sub-lessee from applying under the Ground Rents Acts where its immediate lessor does not have an equivalent entitlement to buy out.

Entitlement to buy out the Fee simple under Section 15

The entitlement of an oral yearly tenant to buy out under Section 15 was referenced by umphreys in inogue v Clare County Council [2021] IECA 98 in the context of compensation payable in respect of a Section 16(2)(a) of the 1978 (No. 2) Act provides that Derelict Sites Vesting Order. For such entitlement to the right to buy out the fee simple does not apply in respect of a lease of land which is used for the purposes arise, there must be a permanent building on the land and the yearly tenancy must not be either a temporary of business or includes a building divided into not less than four separate and self-contained ats being a lease convenience letting or a letting dependent on an office, appointment or employment. Furthermore, which contains provisions enabling the amount of the rent reserved by the lease to be altered within twenty- the property must have been continuously held for 25 years or more under the yearly tenancy or a prior six years from the commencement of the lease (not being provisions enabling such rent to be altered once expired lease.

Entitlement to buy out the fee simple under Section only and within five years from such commencement 15 only exists in respect of the permanent buildings or upon the erection after such commencement of and any land subsidiary and ancillary thereto and any buildings upon the land or upon the breach of a may be denied if the permanent buildings are proved covenant in the lease). to have been erected by the immediate lessor or any Section 16(2)(b) and (c) provide that the right to superior lessor or any of their predecessors in title. buy out the fee simple does not apply in respect of As with Condition 2 of Section 10, the Landlord and a pre-1967 Act lease of land used for the purposes Tenant round ents Amendment Act 201 amends of business, being a lease which contains provisions the definition of predecessors in title’ in Section 15 to requiring the lessee to carry on business on the land exclude lessees holding under previous leases.

Conclusion There remain several questions about various provisions in the legislation, in particular the changes introduced by the 2019 Act and the extent to which the presumption of constitutionality should play a part in their interpretation. One of the first decisions on the interpretation of these provisions is a 2023 ruling by the Monaghan County Registrar in Peddasol Limited v S oldings Limited, another case involving the Shirley estate, in which a tenant who had configured the interior of the Shirley Arms Hotel, Carrickmacross, and erected a large extension at the rear thereof was held to have changed the building’s original identity.

The landlord’s appeal to the Circuit Court was subsequently settled. There will without doubt be more cases of this nature and it will be interesting to see how they unfold. P 48 the Parchment

TIME TO SPRING CLEAN YOUR OFFICE MANUAL?

IST: L O D 2025 TO AML s.150 SAR urity c e S r e Cyb GDPR HR....

Contact the LQSII to t discuss our ra range ang ge of services designed to to help all Irish law w firms

Put P ut your law firm m in th the h lead, join th he the he Q Julie@lqsi.ie / 01-2343727 0 01-234372 72 27 / www.lq www.lqsi.ie qsi.ie

Family Courts Act 2024 This new Act was enacted on the 13th November 2024 but has not yet commenced. Family Law specialist Keith Walsh SC distils some of the main provisions in the new legislation

Guiding Principles [Section 8] The Guiding Principles are divided into those which must be had regard to (1) by the Family Courts and the barristers and solicitors representing parties to family law proceedings or (2) the parties to the family law case.

The Guiding Principles for the Family Courts and barristers and solicitors are: s8(2)(a) in proceedings in which the welfare of a child is involved or likely to be affected by the outcome, ensuring that: (i) the best interests of the child are a primary consideration in the conduct of the proceedings, (ii) the child is informed, as appropriate to his or her age and capacity and the nature of the proceedings, of developments and progress in the proceedings and the outcome of the proceedings, (iii) in respect of a child who is capable of forming his or her own views and where the child wishes to express such views, in so far as is practicable, the views of the child are ascertained and given due weight having regard to the age and maturity of the child, and (iv) there is no unreasonable delay in determining the proceedings; (b) encouraging and facilitating in so far as is possible the parties to the proceedings to achieve consensus to resolve their family law disputes without recourse to the courts, including by the resolution of issues in dispute by means of alternative dispute resolution methods, such as mediation, unless resolution by 50 the Parchment

such means would not be appropriate due to the nature of the proceedings or the risk of adversely affecting the safety of a party to the proceedings or a child to whom the proceedings relate; (c) promoting and engaging in active case management practices, including time limits and maximum word counts for submissions; (d) conducting proceedings in a manner which – (i) in so far as is possible, is user-friendly for the parties to those proceedings, (ii) expeditiously identifies the issues in dispute, (iii) in so far as is possible, facilitates the parties in reaching agreement on the resolution of the issues in dispute, (iv) in so far as is possible, minimises con ict between the parties, and (v) is just, expeditious and likely to minimise the costs of those proceedings.

S8(2)(4) The Guiding Principles for the parties to the family law case are: (a) endeavouring to achieve consensus to resolve family law disputes between the parties to the family law proceedings without recourse to the courts, including by the resolution of issues in dispute by means of alternative dispute resolution methods, such as mediation, unless resolution by such means would not be appropriate due to the nature of the proceedings or the risk of adversely affecting the safety of a party to the proceedings or a child to whom the proceedings relate; (b) participating in proceedings in a manner which, in so far as is possible –

Spring 2025 dsba.ie Keith Walsh SC is a Dublin solicitor practising primarily in the area of family law and family disputes. He is a former President of the DSBA

(i) ensures, in respect of proceedings in which the welfare of a child is involved or likely to be affected by the outcome – (I) that the best interests of the child are a primary consideration in the conduct of the proceedings, and (II) that the child is informed, as appropriate to his or her age and capacity and the nature of the proceedings, of developments and progress in the proceedings and the outcome of the proceedings, (ii) minimises the risk of the safety of any party to the proceedings or a child to whom the proceedings relate being adversely affected, where the safety of such a party or child is involved, (iii) facilitates agreement being reached on the resolution of the issues in dispute, (iv) minimises con ict between the parties, and (v) is expeditious and likely to minimise the costs of those proceedings.

Comment The Guiding Principles impose additional duties on the Court, the lawyers representing the parties and the parties themselves. Issues such as delay will require, at a minimum, additional resources to be provided to the Courts Service and the Legal Aid Board by the state.

While the Guiding Principles are welcome, they will not achieve any positive change without the provision of resources to back them up. The emphasis on ADR is welcome.

Family Law

The establishment of a Family High Court, Family Circuit Court and Family District Court as divisions of the existing Courts a. Principal udges Each jurisdiction to have its own Principal Judge i.e. Principal Judge of the Family High Court, Principal Judge of the Circuit Family Court and Principal Judge of the District Family court.

The Family Courts will be staffed by specialist Family Court Judges who will work full-time in this area and who have specialist training and/or experience in family law and will receive ongoing training. b. Proceedings and sittings of the Family Courts Mediation is to be encouraged and Family Court Judges may suspend proceedings to allow mediation or other ADR methods on their own motion or on the request of either party, if he or she considers that mediation or another alternative dispute resolution process would assist in resolving some or all of the issues in dispute. In considering whether to suspend the proceedings the Judge shall endeavour to ensure that any suspension of proceedings does not have the effect of – (a) adversely affecting the safety of a party to the proceedings or a child to whom the proceedings relate, (b) unduly delaying the resolution of the issues in dispute, or (c) materially increasing the costs of proceedings. c. Different buildings or rooms or different days The Family Courts must sit in a different building or room in which sittings of any other

While the Guiding Principles are welcome, they will not achieve any positive change without the provision of resources to back them up

the Parchment 51

Although not specified in the Family Courts Act 2024, it is likely that these new circuits would be much greater than the current ones and would provide for specialist Family Courts to be established around the country

52 the Parchment

court are held or on different days or at different times from the days on which, or times at which, sittings of any such other court are held. There is an exception to this where (a) the safety or welfare of a party to the proceedings or a child to whom the proceedings relate is likely to be adversely affected if the proceedings are not heard as a matter of urgency, or (b) due to the urgency of the case or in exceptional circumstances the court is satisfied that compliance with that subsection is not possible. d. eographic jurisdictions The Courts Service after consultation with the President of the Court and the Principal Judge of the Family Court of the appropriate jurisdiction can create new Family High Court circuits, Circuit Family Court circuits and District Family Court areas.

Although not specified in the Family Courts Act 2024, it is likely that these new circuits would be much greater than the current ones and would provide for specialist Family Courts to be established around the country.

Change to jurisdictions of the existing High Court, Circuit Court, District Court 1. The District Family Court will be able to deal with unlimited monetary jurisdiction provided the Judge is satisfied the parties have reached agreement and consented to the District Family Court dealing with the proceedings. [s69] 2. District Family Court Judge may transfer proceedings before them to the Circuit Family Court where it is [more] appropriate for the Circuit Family Court to deal with the case. [s70].

A Circuit Family Court Judge may transfer down to the District Family Court. [s71]. The exception to transfer up or down between District and Circuit Family Courts are where a particular Court has granted a decree of judicial separation, divorce or dissolution of civil partnership that Court will retain jurisdiction to deal with ancillary orders thereafter.

3. Expansion of the District Family Court [note the figures below represent the maximum in the District Court only] i. Child maintenance [s75 amends s5 of the Guardianship of Infants Act, 1964] Maximum per child increase from 150.00 per child per week to 500.00 per child per week.

Maximum lump sum order per child from 15,000.00 to 50,000.00 ii. Spousal maintenance [s77 amends s23 of the Family Law (Maintenance of Spouses and Children Act) 1976] Maximum weekly maintenance for spouse from 500.00 per week to 1,500.00 iii.Periodic and Lump sum maintenance for Civil Partner [s90 amends s140, s196(2)(a) for periodic maintenance and s51(3) for lump sum maintenance, s140 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010] Maximum weekly maintenance for civil partner from 500.00 per week to 1,500.00 Maximum per dependent child increase from

150.00 per child per week to 500.00 per child per week.

Maximum lump sum for Civil Partner from 15,000.00 to 50,000.00 Maximum limit for District Court to be able to deal with household chattels for Civil Partnership dissolution increases from 15,000.00 to 50,000.00 iv. Increase in maintenance per week for cohabitants from 500.00 to 1,500.00 per week. [s90 amends s196(2) of the 2010 Act] v. Increase jurisdiction of the Family District Court to 1 million market value of any land to which the proceedings relate.

The Family District Court has been given concurrent jurisdiction with the Family High and Circuit Courts for applications under – a. Family Law Act 1981- broken engagements b. Judicial Separation and Family Law Act 1989, Family Law Act 1995- judicial separation and various orders c. Family Law (Divorce) Act 1996- Divorce d. Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010Civil partnership proceedings [except for declarations of civil partnership status or for decree of nullity under s107 of the 2010 Act] and it appears that the amendment of s196 of 2010 Act may be intended to ensure that applications for orders for redress by economically dependent qualified cohabitants as well as s194 applications can be brought in the Family District Court.

4 Childcare proceedings – the Circuit Court is given concurrent jurisdiction with the District Court in relation to supervision and care orders and related matters, s80(d)-(ab)(iii) of the Act.

Joint Applications Spouses can make a joint application for a decree of judicial separation or for a decree of divorce [s82(a) inserts a new s5A into the Family Law Act 1995 and s83(c) inserts a new s10A into the Family Law (Divorce) Act 1996]. Civil partners can make a joint application for a decree of dissolution.

Limitation on personal cross-examination by applicant or respondent in family law proceedings, s98 – similar provisions to those

contained in the Domestic Violence Act 2018 were introduced for all family law proceedings regarding prohibition on the applicant or respondent personally cross-examining the other party.

Rules of Court in Family Law Proceedings, s51 This section has been completely changed from the initial proposal of a specialist Family Courts Rules Committee in the General Scheme of the Family Courts Bill in 2020 or the second “either or” proposal in the Family Courts Bill published in 2022 which was either to set up a specialist Family Rules Committee or to establish sub-committees of the Rules committees.

None of these options have been pursued and a totally new approach was taken in the last rounds of amendments on 5th November 2024 resulting in the

Spring 2025 dsba.ie

Family Law

new system without any consultation with the legal professions.

The current Rules committees [Rules of the Superior Courts Committee, Circuit Court Rules Committee, District Court Rules Committees] remain in place to make rules in respect of the Family Courts, however: a. the Principal Judge of each Family Court is entitled to sit on the Rules committee for their jurisdiction s51(a)-(c). b. where making rules in relation to the Family Courts, the Rules Committee must have regard to: - the guiding principles set out in s8 as well as the proper and efficient administration of justice [s72A(3) of the Courts of Justice Act 1936 as inserted by s51(d) of the Family Courts Bill] and - must consult with the Family Courts Practice and Procedure Committee and “shall have regard to the views of that Committee in the making of such rules”. [s72A(4) of the Courts of Justice Act 1936 as inserted by s51(d) of the Family Courts Bill]

Family Courts Practice and Procedure Committee, s52 (1) The Principal Judges of the Family High Court, the Family Circuit Court and the Family District Court (referred to as “the Family Courts”) and no more than 2 members of the staff of the Courts Service nominated by the Chief Executive of the Courts Service shall, subject to subsection (4),

meet as a committee, to be known as the Family Courts Practice and Procedure Committee, on a regular basis, being not less than twice during any year, with the aim of – (a) ensuring, in so far as possible, a consistent approach to practice and procedure among the Family Courts, and (b) considering relevant matters related to the functions of the Courts Service under section 5 of the Courts Service Act 1998 in relation to the Family Courts.

(2) Without prejudice to the functions of the Superior Courts Rules Committee, the Circuit Court Rules Committee or the District Court Rules Committee, the Family Courts Practice and Procedure Committee may propose the making of rules of court by any or all of those Committees in respect of family law proceedings.

(3) A Principal Judge referred to in subsection (1) may request that a meeting of the Family Courts Practice and Procedure Committee be convened in addition to the meetings mentioned in subsection (1) where he or she is of the opinion that a divergence in practice or procedure is emerging among the Family Courts.

(4) Where a request is made under subsection (3), a meeting of the Family Courts Practice and Procedure Committee shall be convened as soon as practicable.

(5) The Family Courts Practice and Procedure Committee shall regulate its own procedure and business. P the Parchment 53

Time Extensions to Company Returns Enforcement against non-filing companies has fully resumed following Covid-19. William Dunne BL assesses a recent Court judgment which shows the narrow operation of extensions of time for Company Returns and the consequences for companies and solicitors caught unawares

Obligation to File Returns By operation of Section 343 of the Companies Act 2014 (the “2014 Act”), every company has an annual return date and is obliged to file its returns within 56 days of its assigned return date. This return (also called Form B1) contains basic details about the company, such as its registered office, directors, secretary, and shareholders, along with the company’s financial statements, depending on the type of company and its financial standing.

Where a company fails to file its return within that time, it automatically loses its entitlement to an audit exemption for its statutory financial statements for the next two financial years. This is of very significant consequence to small and medium si ed companies who benefit from the exemption and can face the full expense of an audit, a significant cost especially if the company has limited turnover. A late filing company also faces a penalty charge beginning at 100 and escalating up to a maximum penalty of 1,200 per return. While the Oireachtas has enacted Companies (Corporate Governance and Regulatory Provisions) Act 2024 which would remove the automatic loss of the audit exemption for the first instance of a late filing of the annual return, this Act has not yet been commenced.

In addition, companies and directors may be prosecuted, pursuant to Section 343 of the 2014 Act, for failing to make the annual return with the maximum penalty for each offence at 5,000. The Companies Registration Office (CRO) has, generally, focused prosecutions on companies that have a poor filing history. Most severely, the CRO may seek the involuntary strike off of a company which has failed to file returns. In the example of Cautious Trading Ltd. 54 the Parchment

(Director of Corporate Enforcement v. McDonnell [2005] 1 IR 503), the directors’ failure to file CRO returns led to the striking off of the company, the directors’ disqualification and their personal liability for legal costs.

After nearly five years of pause due to the Covid-19 pandemic, the CRO has this year resumed its efforts to strike off non-compliant companies, beginning a campaign that will see numerous companies listed for strike off. The recent CRO Gazette, dated 19 March, reveals 19 companies struck off the register on 14 March 2025 and a further 20 slated for dissolution within the following 28 days.

Applications to Extend Given this, a company is often anxious to regularise its position by extending the time for making its annual return. Section 343(5) of the 2014 Act allows a company to apply to the District Court for an extension of time within which it can deliver its return to the Registrar of Companies. In addition, the consequences of late filing (late filing fees / loss of audit exemption) will not apply to that annual return.

Such applications are made by motion on notice and grounded upon an affidavit of a company director setting out the relevant details of the company including the company number, why there was a failure to submit the annual return on time and that the director and company will comply with their statutory obligations and must include an averment that no previous order has been made by the District Court under s.343(5) for the period.

Practically, practitioners instructed to seek such extensions (as directors of the companies are unable to represent the company in court) should be aware of

Spring 2025 dsba.ie William Dunne BL is a practising barrister who specialises in Company Law and Commercial/Chancery

the advisability of taking several steps.

First, a clear 21 days’ notice should be given to the Registrar of Companies of any application and correspondence with them should be made, ideally resulting in the CRO issuing a letter of no objection.

If the CRO has less than 21 days’ notice, they will request the applicant adjourn the matter and will not issue a letter of no objection. They may also make other requests in respect of amending the application if there is any deficiency in the affidavit.

One of the key advantages of this application is that upon securing a return date in the District Court and serving the Registrar of Companies with the necessary documents, the CRO will immediately cease enforcement action against the Company.

Finally, and of particular relevance, the application should not be moved or order obtained from the court until the returns are ready to be filed and any necessary accounting completed or it is known for complete certain how long will be needed to do so. The danger of not doing so has recently been illustrated.

One Order only – no more Section 343(5) of the 2014 Act provides that: The court, on an application made on notice to the egistrar by a company, may, if it is satisfied that it would be just to do so, make an order extending the time for the purposes of subsection 2 or in which the annual return of the company in relation to a particular period may be delivered to the egistrar; only one such order may be made as respects the particular period to which the return concerned of the company relates.

Section 343(6) of the 2014 Act goes on to state: ithin 2 days after the date on which an order under

subsection is made, or such longer period as the court may allow on the making of the order, the company to which the order relates shall deliver a certified copy of the order to the egistrar; if the order is not received by the egistrar within whichever foregoing period is applicable it shall not be valid for the purposes of subsection .

Accordingly, while the Court has exibility to make the extension as long or as short as it sees fit (although 28 days is standard) it is statutorily prohibited from making any further extension irrespective of what circumstances arise.

Notwithstanding this, in certain instances and sittings judges of the District Court had made second extensions. This eventually led to judicial review proceedings by the CRO of two such purported extensions and the very recent judgment of Mr Justice Heslin in the High Court in egistrar of Companies v reenway Ltd itchen Innovation Ltd [2025] IEHC 16. This concerned two companies which both had second extensions of time made due to sympathetic circumstances. In one, reenway, the company’s solicitor averred that, if the second extension was not granted, he would be personally liable to the company for the 10,000 in auditing fees. Similarly, in itchen Innovation, the returns were late because of a lengthy examinership. Judge Heslin, however, quashed both second extensions and ruled there was no statutory jurisdiction to grant more than one extension for any period.

Thus, despite the exibility of the initial extension, it is impossible to have any further extension after that new deadline. Practitioners should thus only seek an extension order where they are sure the company can comply with the new deadline, ideally when the return is ready. P

Company Law

The recent CRO Gazette, dated 19 March, reveals 19 companies struck off the register on 14 March 2025 and a further 20 slated for dissolution within the following 28 days

the Parchment 55

Domestic Violence - Law and Practice in Ireland

by Sonya Dixon and Keith Walsh

S

olicitors, barristers, Gardaí, social workers and judges must routinely confront aspects of life and society that most people would prefer to avoid.

These professionals witness firsthand the challenging realities faced by many individuals, often intervening in situations that require sensitivity, empathy, and thorough understanding of the law.

While life can be unpredictable and harsh, for many of us home is a sanctuary – a safe space from external harm. This ancient notion was eloquently defined in 1604 by Judge Edward Coke, who stated: “The house of every one is to him as his castle and fortress as well for defence against injury and violence, as for his repose.”

Regrettably, for some, this ideal is far from reality.

Instead of being a place of safety, home becomes a source of fear and danger when a loved one becomes the perpetrator of violence. Reporting domestic violence can be fraught with challenges, including fear of retaliation, financial dependence on the abuser, and emotional hurdles such as shame, guilt, and fear. These barriers often make it difficult for victims to come forward and for solicitors to take clear instructions from vulnerable clients.

In recent decades, the legal framework surrounding domestic violence has evolved significantly. Over the past 30 years, Ireland has seen transformative changes in both society and family dynamics.

The Domestic Violence Act 2018 represents a landmark in this evolution, introducing extensive updates to the legislation and procedures governing court applications for domestic violence orders. This act re ects the changing nature of domestic abuse, recognising forms of abuse beyond physical violence, including coercive control, and aligning legal protections with the realities faced by victims.

A timely and valuable resource for legal practitioners navigating this complex area is the publication by Keith Walsh, solicitor, and Sonya Dixon BL. Their work provides a comprehensive update on the practice and procedure surrounding domestic violence

56 the Parchment

cases, making it an indispensable tool for solicitors, barristers, and others involved in the legal process.

One chapter, in particular, stands out: Chapter 1 - ow to btain a Domestic iolence rder. This pragmatic guide offers a step-by-step walkthrough of the legislation, types of orders available, required forms, and evidence needed. The authors meticulously break down each component of the application process while contextualising it within the broader legislative framework. Importantly, the chapter also discusses defending against such orders and highlights the limitations of the legislation. This practical focus ensures that the publication meets the needs of busy practitioners. Other legal authors should take note – this is precisely the kind of resource that solicitors require to navigate complex areas of the law.

The book goes further, detailing jurisdiction, procedure, and court rules. A dedicated chapter on coercive control provides crucial insights into this insidious form of abuse, which has more recently gained recognition in legal and societal discourse.

This chapter alone is a testament to the authors’ commitment to addressing the evolving nature of domestic abuse and ensuring that practitioners are equipped to respond effectively.

Another highlight is Chapter 7, which situates the Domestic Violence Act 2018 within the broader context of family law. By providing this perspective, the authors bridge the gap between domestic violence legislation and its practical implications within the family law framework. This contextual approach is invaluable for solicitors who must navigate overlapping areas of law to serve their clients effectively.

The publication’s utility extends beyond solicitors and barristers – it is a resource for anyone working in the justice system who encounters domestic violence cases. Judges, Garda and social workers will find its detailed explanations and practical advice beneficial in their work. By synthesising legislative analysis with practical guidance, Walsh and Dixon have created a resource that is as insightful as it is practical.

In conclusion, I commend Keith Walsh and Sonya Dixon for their diligence and dedication in producing this essential guide. Their work not only re ects the complexities of domestic violence law but also provides the clarity and structure that practitioners need to navigate it effectively. As domestic violence law continues to evolve, publications like this ensure that legal professionals remain well-equipped to support vulnerable clients, defend those wrongly accused and advocate for justice.

Spring 2025 dsba.ie Susan Martin is the principal of Martin Solicitors, Clarehall, Dublin 13. She is a former President of the DSBA

Book Reviews

The Evolution of Humanitarian Intervention in International Law – From the Ottoman Empire to the Russia-Ukraine War

by Dr. Cian Moran

D

r. Cian Moran’s The volution of umanitarian Intervention in International Law From the ttoman mpire to the ussiaUkraine ar examines the existence of a legal right to humanitarian intervention and the criteria that define it, situating this analysis within a historical and legal framework. As a serving officer in the Irish Naval Service, Dr. Moran brings a fresh perspective, offering insights into the operational and legal dimensions of intervention. This work is particularly timely given the ongoing humanitarian crises in the Middle East and the large-scale war in Ukraine, making this book a valuable contribution to understanding an increasingly complex and contested field of international law.

Intervention, in any form, is inherently complex and fraught with ethical and legal dilemmas. When is it justified, and when should states refrain from interference Is intervention a legitimate means of upholding humanitarian values, or does it often serve as a pretext for political or strategic interests Greek mythology offers cautionary tales about interventionist deities whose actions frequently led to unintended consequences – an apt analogy for the challenges posed by modern humanitarian interventions.

Humanitarian intervention, in particular, raises difficult legal and ethical questions. Under what circumstances should it be deployed, and what thresholds must be met for it to be justified under international law Equally significant is the issue of post-con ict resolution: once the immediate crisis has been addressed, how do interventionists win the peace Since the Treaty of Westphalia, the principle of state sovereignty has been central to international relations, with Western powers traditionally and perhaps strategically favouring a non-interventionist approach in the internal affairs of sovereign nations.

Dr. Moran’s book explores how this principle has evolved, particularly in response to major con icts over the past 200 years.

Too often, historical con icts are understood only superficially, with little appreciation of their broader legal and political significance. For instance, my own past understanding of the con ict between the Ottoman Empire and Russia was limited to cultural references – the Percy French song Abdul Abulbul Amir and the Skibbereen agle famously “keeping its eye on the C ar”. Dr. Moran’s book provides an in-depth exploration of the origins of humanitarian intervention through extensive use of primary sources. One particularly interesting section examines the role of the Concert of Europe in shaping early interventionist

policies following the Napoleonic Wars. The book offers a nuanced assessment of figures like Viscount Castlereagh, whose diplomatic efforts helped maintain European stability – despite his controversial role in suppressing the Irish Rebellion of 1798. Moran’s analysis is both in-depth and pacy, guiding the reader through key interventions of the 20th and 21st centuries, culminating in the Russian invasion of Ukraine in 2022. A striking theme which resonates through the book is the tension between the often noble ideals of humanitarian intervention and the realpolitik of global powers. While intervention is often framed as a moral obligation to prevent atrocities, Moran highlights how geopolitical and national interests frequently dictate when and where intervention occurs – or is deliberately avoided. This reality underscores the central dilemma of humanitarian intervention: it is an aspiration constrained by the self-interest of those with the power to act or prevent action by others. The final chapter of the book provides a rigorous analysis of 200 years of humanitarian intervention, offering a sobering conclusion: “Despite extensive academic interest in the area, it is unconvincing to argue that humanitarian intervention continues to exist under customary international law. umanitarian intervention simply lacks the support among states to demonstrate opinio juris.”

Dr. Moran considers the role of the use of force to end atrocities. He contends that: “The most viable option currently available is a continuation of the present system where humanitarian intervention’s existence as a right under international law is rejected but that its use can be occasionally overlooked.” He goes on to state that such intercession should ideally occur through multilateral interventions rather than unilateral action. He argues that: “A multilateral intervention will limit one state expanding its interests in a manner that threatens other nations.”

This thesis makes a significant contribution to ongoing discussions on the responsibility to protect (R2P) and the future of humanitarian intervention within the UN framework, while offering a pragmatic assessment that the permanent members of the UN Security Council are unlikely to allow the emergence of any alternative body that could challenge their hegemony. Dr. Moran is to be praised for his thorough research and insightful analysis of this complex topic.

His book will be of great interest to students of international law, political science, those in humanitarian posts, and legal professionals. By combining historical depth with a critical analysis, The volution of umanitarian Intervention in International Law provides a thought-provoking examination of a complex issue in modern international relations. P the Parchment 57

PROCEDURE FOR EXPERT WITNESSES GIVING REMOTE EVIDENCE The Courts Service continues to operate under the Pexip system. If an expert witness chooses to give evidence remotely, it is incumbent on each party to notify the other party that their witness intends giving evidence in this manner, in case there is an objection.

If the other party objects to remote evidence, then an application will have to be made to Court.

Once that has been dealt with, the Court dealing with the callover must be notified on the morning of the hearing that the witness is

STAMP DUTY REFUNDS

WARNING LETTERS

There is a project to replace refund cheques with payments by EFT. The Courts Service has asked that the provision of reference numbers provided by solicitors would be included as part of the refund process.

This should allow firms reconcile refunds on their bank accounts.

The only 28-day warning letters the Central Office typically request are those specified under the Rules of the Superior Courts: 28-day warning letter in default of Defence (Order 27, Rule 10), Default of Appearance (Order 13, Rule 2), and Application to dismiss for want of

TO ADVERTISE CONTACT: SHARON HUGHES E: SHARON@256CONTENT.COM

58 the Parchment

going to give such evidence. You should have the witness’s mobile number. The Courts will give a VMR code which will then be given to your witness who can dial in using the password. The expert witness will have to have the Pexip software downloaded.

prosecution due to failure to deliver a Statement of Claim (Order 27, RSC).

It would be highly unusual for the Central Office to request anything beyond these parameters set by the RSC. The best approach for any queries is to email: highcourtcentraloffice courts.ie which will allow the Central Office to investigate any issues promptly.

Spring 2025 dsba.ie

In Practice

NEW HIGH COURT PRACTICE DIRECTIONS Two new High Court Practice Directions have been announced, HC 131 and HC 132, both of which impact how Clinical Negligence proceedings are run in the High Court. The team at Pearts Solicitors and Town Agents provide a useful overview

HC 131 - Clinical Negligence Actions - Applications for Trial Dates This practice direction will apply from April 28th 2025 and outlines the means by which a party to clinical negligence proceedings may apply for a date for trial. Its stated objective is to facilitate the earlier resolution of claims, ensuring cases are properly prepared for trial and enhancing efficient case management.

After the case has been set down for trial, a party to clinical negligence proceedings can give 28 days’ notice to all affected parties and apply for a date for trial.

The following conditions must first be satisfied and confirmed in writing by a Certificate of Compliance signed by their solicitor.

Summary of Conditions

1. Fully Pleaded Case The applicant must have fully pleaded all aspects of their case, any alleged additional injuries or special damages must be particularised, and the applicant must also have complied with all outstanding discovery obligations, including requests for voluntary discovery, raised prior to the service of the 28 days’ notice.

2. Schedule of Witnesses The applicant must have exchanged or have offered to exchange a complete schedule of all witnesses, both factual and expert, intended to be called at trial.

3. Exchange of Expert Reports The applicant must have exchanged or have offered to exchange all expert reports intended to be relied upon at trial.

4. Mediation The applicant must provide an undertaking to offer mediation to the opposing party or parties within three weeks of the date on which the trial date is fixed.

Full details of the Practice Direction, including details on how the Court may hear urgent applications and sanctions for noncompliance, can be found at Courts.ie.

HC 132 - Clinical Negligence List This practice direction will apply from April 28th 2025 and establishes a dedicated Clinical Negligence List within the Dublin Personal Injuries List of the High Court for the purpose of managing clinical negligence proceedings.

Scope of the List 1. The Clinical Negligence List shall encompass all Clinical Negligence proceedings.

2. The list will apply to all stages of proceedings including mentions, applications for dates for trial, interlocutory applications, case management directions hearings, hearings and cost applications.

3. The exception to the above is that motions, including ex-parte applications, ordinarily listed in the Monday Common Law Motion Lists will remain in that list.

4. The list will be presided over by the judge of the High Court who is assigned to manage the Personal Injuries List.

5. The list shall apply to all clinical negligence proceedings, irrespective of whether they were commenced prior to or after the introduction of this Practice Direction.

6. Interlocutory applications for the management of clinical negligence proceedings and applications for case management can be heard in the List but only with the prior leave of the Judge in Charge of the Clinical Negligence List, which may be applied for ex parte.

Full details of the Practice Direction can be found on the Courts.ie website.

Pearts Solicitors and Town Agents provide an invaluable support and assistance agency service to a large number of solicitors. the Parchment 59

News

Lavelle Appoints Two New Partners Lavelle Partners LLP recently announced the appointment of Georgina Lanigan and Dermot McClean as Partners in the firm.

Georgina Lanigan, as Partner, heads up the firm’s extensive Asset Debt Recovery Team. She has over 10 years’ experience as a Court litigation specialist in advising leading financial institutions, credit servicing firms and SMEs on mortgage and commercial litigation, asset recovery and enforcement of security.

Dermot McClean is a Partner in the firm’s Litigation Dispute Resolution Team.

He has specialist expertise in commercial litigation, corporate restructuring and insolvency, acting for a varied array of clients on a number of high-profile disputes.

Dermot has extensive experience in defamation actions, estate disputes, insurance disputes and professional negligence litigation. He is also very wellversed in advising SMEs on their insolvency options, including liquidation and the Small Company Administrative Rescue Process.

Commenting on the recent appointments, Michael Lavelle, Managing Partner said: “I am delighted to welcome Georgina and Dermot to the partnership. Their extensive

experience, legal expertise and new ideas will greatly enhance our client offering and I look forward to working closely with them as they evolve as leaders in their new roles.

“The appointments reflect our continued growth, alongside a notable o ce move on the horizon this year.”

Left to right: Dermot McClean, Partner (Litigation & Dispute Resolution), Georgina Lanigan, Partner (Asset & Debt Recovery) and Michael Lavelle, Managing Partner at Lavelle Partners LLP

OBL Solicitors now Keoghs Ireland LLP The well-known Dublin law firm O’Brien Lynam (OBL) has been rebranded and recently announced as Keoghs Ireland LLP. OBL was established by Jack O’Brien and Michael Lynam 25 years ago and the practice involves the expansion of the specialist UK professional-services and technology business, Davies, expanding its legal arm, Keoghs, to Dublin.

Minister for Public Expenditure and Reform Jack Chambers TD formally launched the new solicitors practice noting OBL’s specialisation and successes to date.

He welcomed Keoghs’ ambition for the future and the international element of the new legal firm.

Minister of State for European Affairs, Thomas Byrne TD, himself as solicitor, was also in attendance at the launch. Minister Byrne is a brother of Mary Byrne, partner in Keoghs.

Mary Byrne (Partner), Minister for Public Expenditure and Reform Jack Chambers TD, Jack O’Brien (Partner) and Michael Lynam (Partner) 60 the Parchment

WE TRACE MISSING HEIRS WILLS DOCUMENTS ASSETS

WORLDWIDE contact@findersinternational.ie www.findersinternational.ie

TO ADVERTISE CONTACT: SHARON HUGHES E: SHARON@256CONTENT.COM

1800 210 210

A lunch was hosted by the DSBA in honour of Dublin Solicitors who are 50 years (or more) in practice on the 11th October 2024 at the RDS, Ballsbridge.

There was a large attendance to mark this very special occasion.

Left: Raymond Moran, Peter Douglas, Michael Traynor and John Fitzpatrick

Left: John Dunne and Paul Ferris Far left: Geraldine Lynch Burke, Rosemary Ryan, Bernadette Malone, Louise Peart and June Farrell

Right: Thomas Mullins, Justin McKenna and Patrick White Far right: Patrick Groarke, Maura Smith, Orla Coyne and Geraldine Madigan

Left: Anthony Kirwan, Peter Kirwan and Paul Hayes Far left: June Farrell, Joan O’Mahony and Rose Marie Kirwan

62 the Parchment

Spring 2025 dsba.ie Photography: Mark Harrison

50+ years in Practice

Right: Patrick Clyne, John Wood and Matthew Kenny Far right: Anthony Hanahoe and Kevin O’Higgins

Left: Stephen C. Hamilton, John Reidy, Patrick Clyne and Ivan Durcan Far left: Derek Greenlee and Rory O’Donnell

Right: Leo Mangan, Mary Finlay Geoghegan and Tim O’Driscoll Far right: Pat O’Brien, James Mackey and John O’Malley

Left: Patrick Kevans, Michael V O’Mahony and Thomas J O’Reilly Far left: Gordon Henderson and Fintan Clancy

the Parchment 63

DSBA Litigation Seminar

The DSBA Litigation committee hosted a seminar on the 20th March 2025 at the St. Stephen’s Green Club, Dublin 2.

The aim of the seminar was to inform practitioners about litigation arising in commercial leases and the associated pitfalls and traps. The speakers at the seminar were Angela McCann, Solicitor, Michelle Linnane, Solicitor, and Susan Martin, Solicitor.

Judge Gerard Griffin (retired) chaired the seminar.

Photography: Roger Kenny

Left to right: Michelle Linnane, Susan Martin, Judge Gerard Griffin and Angela McCann

Left: Mathew Wallace and Darragh Murray Far left: Sarah Byrne, Sarah Flynn and Caolán Doyle

Right: Stephen Kelly, David O’Dowd and Peter Gibbons Far right: Oonagh Gearty, Aisling McHugh, Ronan O’Brien and Camilla Leigh

Left: Rebecca Murphy and Gavin Murphy Far left: Lily Hall and Karen Clabby

64 the Parchment

IF LIFE GIVES YOU LEMONS WE’RE HERE TO HELP Consult a Colleague now in total confidence

Call us on 01 284 8484 All calls to the Consult A Colleague helpline are treated in the strictest confidence - there is no need to give a name or number.

A confidential free service from the DSBA.

www.consultacolleague.ie

CORT

Software for Solicitors

CORT2019

Requisitions on Title

Approved by the DSBA and licensed by the Law Society of Ireland to reproduce the Requisitions on Title

CORTBase

Case & Risk Management Simple user interface and dedicated support line to help you maximise efficiency and productivity

CORTBase

Legal Accounts Innovative design making this the easiest and the fastest legal accounts system available today

Innovative - Affordable - Reliable

01 683 1927 cort@cortsite.com www.cortsite.com

2019-03 cortbase-parchmentad_Final.indd 1

27/03/2019 12:16