Ireland’s Business to Business Magazine of the Year DSBA.IE
D UB LIN SOLICITORS’ B AR ASSOCIATION MAGAZ INE | SUMMER 2016 | ISSU E 68
NOELINE BLACKWELL CROSS-EXAMINED 20 MINUTES WITH PAUL TWEED
How does Politics affect Judicial Selection?
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Summer 2016 dsba.ie
From the Editor
elcome to the summer edition of the Parchment. The tradition of the DSBA has always been to focus on its members and their concerns. Collegiality is a cornerstone at the DSBA and from the many seminars and social events throughout the year, keeping in touch with colleagues and sharing experiences has been ever important. In this edition we put the spotlight on three colleagues: Noeline Blackwell, Gerard Rudden and Paul Tweed – sharing insights into their lives and practices. The magazine is jam packed with relevant articles to practice today. Marissa O’Keefe writes about the key changes to the landlord and tenant law in light of the reforms contained in the Residential Tenancies (Amendment) Act. Congratulations to the winners at the annual DSBA Book Awards which took place at a glittering ceremony attended by ambassador of the United Kingdom, Dominick John Chilcott who was guest of honour. He heaped praise on the nominees and
winners, describing their writing and thinking as immensely important contributions to the profession. The decision of the majority of British people to leave the European Union will have far reaching and significant implications, unknown to us at this time. The exit is unprecedented and there’s much uncertainty as we enter this new era. Many colleagues will be advising clients on the implications of the ‘Brexit’ as it will encompass the ‘knock on’ effect in areas such as banking and financial regulation, consumer law, taxation, competition law, insolvency, employment law, procurement law and data privacy. During the transitional period, solicitors will play an important role in this greatly evolving world. Have a great summer.
John Geary email@example.com
DSBA COUNCIL 2015/2016
EAMONN SHANNON DSBA President
AINE HYNES Vice President Chair - Mental Health and Capacity Committee
ROBERT RYAN Honorary Treasurer
ELAINE GIVEN Honorary Secretary
GREG RYAN Programmes Director Chair - Commercial Law Committee
DIEGO GALLAGHER Chair - IP and Technology Committee
TONY O’SULLIVAN Chair - Property Committee
JOE O’MALLEY Chairman of the Litigation Commitee
CAROL EAGER Chair of Commercial Law Commitee
SUSAN MARTIN Chair of Family Law Committee
VICKY PIGOT Chair - In-house Lawyers Committee
LAURA HORAN Chair of Younger Members Committee
PAUL RYAN Chair of In House Committee
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EDITOR John Geary PARCHMENT COMMITTEE Julie Doyle Stuart Gilhooly Áine Hynes Geraldine Kelly Killian Morris Gerry O’Connell Kevin O’Higgins Joe O’Malley Keith Walsh COPYRIGHT The Dublin Solicitors’ Bar Association
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20 Minutes with...
DSBA Annual Book Award Winners
Who selects our Judges?
Disclaimers and CAT Implications
Killian Morris talks to Belfastbased defamation solicitor Paul Tweed
I believe that the media has a very important role in reporting legal proceedings, provided it does so in a fair and balanced manner page 6
20 MINUTES WITH... PAUL TWEED
A report on the recently crowned winners at the annual awards ceremony celebrating the best in Irish legal writing
Keith Walsh reviews Dr Jennifer Carroll MacNeillâ€™s new book on the Politics of Judicial Selection in Ireland
Flor McCarthy assesses where solicitors stand in an age of such modern technology
Stuart Gilhooly interviews former director of FLAC and new CEO of the Rape Crisis Centre, Noeline Blackwell
Brian Broderick advises that disclaimers can be effective in distributing an estate more tax efficiently
Dublin Solicitorsâ€™ Bar Association 1st Floor, 54 Dawson Street, Dublin 2, Ireland T: 01 670 6089 E: email@example.com W: www.dsba.ie
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Summer 2016 dsba.ie
REGULAR FEATURES 01 Editor’s Note 04 President’s Message 48 In Practice 54 News 58 Photocall 64 Closing Argument
Meet Gerard Rudden
A Solicitor’s Costs Victory
Julie Doyle meets Gerard Rudden the recent winner of the 2016 Litigation Case of the Year at the annual Law Awards
Keith Walsh examines a significant judgement of the court of appeal which has given solicitors a shot in the arm
Smart Phones - When are they not so smart?
Changes to Landlord and Tenant Law
Cyber Security and the Legal Sector
Supreme Court CPO Judgement hits IDA
Greg Ryan gives some salutary advice on the use of your smartphone
Marissa O’Keeffe sets out the key changes and reforms in the Residential Tenancies (Amendment) Act 2015
Tom O’Neill offers advice on how to combat this major issue
Catherine Young reports on a recent Supreme Court decision involving the IDA trying to acquire land
Keith Walsh reviews Dr Geoffrey Shannon’s new book Children and Family Relationship Law in Ireland as well Irish Family Law Handbook by Deirdre Kennedy, BL and Elizabeth McGuire, BL
Noeline Blackwell cross examined the Parchment 3
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Message from the President
DSBA Events Success
he summer has arrived albeit with typical June showers but thankfully the sun came out for our annual members’ dinner and Law Book Awards which proved to be a fantastic success as evidenced by the photos in this edition. I would like to thank in particular our sponsors, council members and all of you who supported the event, making the night a great success. We had the honour of his excellency Dominick John Chilcott, ambassador of the United Kingdom, as guest speaker. He also presented the awards to the winning authors, namely Flor McCarthy (DSBA Practical Law Book of the Year), Thomas Courtney (Outstanding Contribution to Legal Scholarship Award) and Tadhg Dorgan, BL; and Peter McKenna, BL; (DSBA Law Book of the Year Award). Though the ambassador was restricted by the purdah in place from speaking about Brexit there was some lively debate amongst colleagues on the possibility of a Brexit and subsequent economic effect on us all. The Law Society recently released figures showing that 186 UK lawyers have, in the first six months of this year, been admitted to the roll here and the primary reason given by them for admission is the possibility of a UK exit from Europe - now a reality given the referendum results on June 23rd. I am aware that many of our big firm members have been working with client companies in Ireland for some months now to prepare for a potential Brexit and that work continues. The DSBA in conjunction with the Family Lawyers’ Association of Ireland, the Law Society and the Bar of Ireland, are engaging with the courts’ services in relation to the proposed move of the childcare courts currently based in Dolphin House to refurbished court premises at the Bridewell. The Bridewell courts will be a temporary measure as it is anticipated the Hammond Lane family courts will be up and running by 2019. Any members with views on this proposed move of the childcare courts can contact me or my Vice President Áine Hynes as both of us sit on the DSBA courts taskforce. On a committee level, our hardworking committees continue to address and advise on concerns raised by members and this year in particular, we have a full CPD programme
The Law Society recently released figures showing that 186 UK lawyers have, in the first six months of this year, been admitted to the roll here and the primary reason given by them for admission is the possibility of a UK exit from Europe – now a reality delivering a wide range of seminars on topical areas of the law. Of particular note was our very successful seminar on the Assisted Decision Making (Capacity) Act 2015 which was organised by the DSBA’s Mental Health and Capacity committee. We will continue to produce top class seminars at a reasonable cost to members and I would
like to thank our programmes director, Greg Ryan and our committee members for their ongoing work. As we enter into the summer term our sporting calendar is in full swing. We had a golfing outing in Castle Golf Club on 23rd June and our captain’s prize is in the K Club on 15th September. The soccer league run by the Young Members committee is well underway and we are looking at organising a tag rugby tournament in September. I am delighted to announce that our tennis tournament is back on the calendar this year thanks to our past president Spanner O’Malley. The tennis tournament will be held on 2nd July at Donnybrook Lawn Tennis Club followed by a BBQ. It has always been a great day out for both competitors and spectators and I look forward to seeing as many of you as possible there. On a lighter note, our annual conference will take place in Washington from the 21st to 25th September. The conference is now booked out and promises to be an unforgettable experience. Finally I would like to wish you an enjoyable and well deserved break over the summer vacation. Eamonn Shannon, DSBA President
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Paul Tweed of Johnsons Solicitors
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Summer 2016 dsba.ie In conversation with Killian Morris of Amoss Solicitors
20 Minutes With...
I think my clients appreciate that there is no substitute for long hours and copious attention to detail, along with the two key qualities any litigator needs... judgment and guts!
Paul Tweed Paul Tweed is the senior partner in Johnsons law firm with offices in Dublin, Belfast and London. A media lawyer, he has represented many high-profile clients ranging from Hollywood A-listers such as Johnny Depp, Harrison Ford and Ashton Kutcher to well known personalities closer to home including Louis Walsh and Michael O’Leary. He also acts for a number of newspapers, publishers and journalists
When did you qualify? I qualified in 1978 after completing a law degree at Queen’s University, and went on to the Institute of Professional Legal Studies in Belfast. I am a member of the Law Societies of Ireland, Northern Ireland and England/Wales, and a registered foreign legal consultant with the California Bar Association. If you hadn’t become a solicitor what would you have done? I am not sure that I would have been much good at anything else, but in my teenage years I had considered journalism as an option, which is somewhat ironic given the nature of my work these days. However, I still have nothing but admiration for investigative reporters. Have you any funny anecdotes from your time as a trainee/apprentice? Although most have been at my expense, I often think of one of the probate partners blurting out as he was about to leave the
office on holiday, that an elderly client couldn’t have picked a worse time to die! Although he didn’t mean it to come out the way it did, this probably says everything about our profession – always having to be on standby to deal with the unexpected. If we asked your best clients to describe you – what would you expect/hope they would say? Most of my clients tend to overrate my achievements for them! Due to the fact that many of my cases result in extensive media coverage as we walk out of the Four Courts, I tend to get the benefit of the client’s immediate gratitude in the glare of the cameras. However, it must be remembered that the cases which have had to go the full distance will have been in the pipeline for many months, if not years, when the clients are often as dependent on my judgment and determination as their own. They at least know that I will fight to the death for them once we have decided on the appropriate
strategy. I think my clients appreciate that there is no substitute for long hours and copious attention to detail, along with the two key qualities any litigator needs... judgment and guts! What was your most memorable moment in practice? Undoubtedly the moment the jury came back with a £450,000 award for BJ Eastwood in his defamation action against his former boxing protégé, Barry McGuigan. At the time, the Sunday Tribune described it as “the undisputed libel championship of the world”, and they could not have been closer to the truth. This was the culmination of many months of tracking down witnesses on both sides of the Atlantic and a five and a half week hearing the High Court in Belfast, against a background where everyone seemed to take the view that the odds were heavily stacked against my client. Although we both remained resolutely confident that we would win in the end, there were the Parchment 7
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Unfortunately, some sections of the press tend to be somewhat selective in what they report and place undue emphasis on issues they deem to support their stance rather than as an impartial observer many sleepless nights in between... although March, 1992 seems a long time ago now. Most interesting or unusual case you were ever involved in? This has to be my very first libel action and baptism of fire in acting for the well known barrister Bob McCartney against the Sunday World, over an article that wrongly accused him of fighting with another senior counsel over the last chocolate éclair in a local cake shop. Again (and this seems to be a common theme in my work), we were battling against all the odds, until after a two week hearing
when both men were awarded libel damages of £50,000 each, which was a lot of money back in 1986. Who has had the most influence on your career and why? I have been fortunate to have had the opportunity to work with many great lawyers over the past four decades whose respective talent has had the effect of making me look good, many of whom are now esteemed members of the bench. Your legal career spans a number of jurisdictions. How is practice different between Ireland and England for
example? Although working in any of the jurisdictions carries the same level of stress and strain, the time limits and other procedural requirements tend to be more rigid and onerous in England than they are in either of the Irish jurisdictions. Celebrity plaintiffs are often accused of “forum shopping” – is this fair comment? Libel tourism is a myth, utilised by the press in a self-interested clamour for reform of the defamation laws. For instance, the case I brought for Justin Timberlake and his wife Jessica Biel is often cited as an example of this practice, when in fact the clients only had the option to sue in either Ireland or England, where the offending publication had been published on a similar pro rata basis per head of population. Accordingly, this was not a case of forum shopping, as the extent of publication was the same in both jurisdictions, and therefore the clients had the right to take legal action in either Dublin or London. Has the media a positive influence on court proceedings? What changes are required? I believe that the media has a very important role in reporting legal proceedings, provided it does so in a fair and balanced manner. Unfortunately, some sections of the press tend to be somewhat selective in what they report and place undue emphasis on issues they deem to support their stance, rather than as impartial observers. Describe an event in your personal life which has had the most important impact on your development as a solicitor? Although I did not find out about this until after I had qualified, in the early 1950s my mother and her father had won a difficult slander action they had brought against a vindictive relative, which I have since regarded as a case of serendipity and which has also been a motivating factor for me during many a difficult court battle. Where were you and what were you doing when you heard about the September 11th attacks? On this side of the Atlantic and on the ground, thankfully. What would be your dream holiday? Any beach in the world during a week long strike by all media outlets, although I would probably start fretting as to where my next case was likely to come from! Tell us something nobody knows about Paul Tweed? I always have considerable difficulty in resisting my two favourite foods (which are also pastimes) – bread and ice cream! Any advice for those entering the solicitors’ profession in 2016? Specialise, specialise and specialise... and an additional foreign language would not do any harm either. P
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Annual DSBA Book Awards For the third year, the prestigious DSBA annual Book Awards ceremony celebrated the best of legal writing over the past 12 months. The prestigious event took place at Dublin’s Hilton Doubletree Hotel on Friday, 17th June 2016. The ambassador of the United Kingdom to Ireland, Dominick John Chilcott was guest of honour and presented the winners with their much-deserved awards
he ambassador said it was a great pleasure for him to be in attendance and congratulated the shortlisted nominees. He said he was most impressed with the issues covered by those shortlisted. In a wide ranging and entertaining speech to the assembled guests, Dominick Chilcott spoke of the British/Irish relationship going back many centuries and how that relationship has evolved. The ambassador spoke of the mutual respect that the UK and Ireland have for one another nowadays, and by the friendship and cooperation that characterise their relations. Ambassador Chilcott said he was unable to speak directly about the upcoming ‘Brexit’ election due to a four week moratorium on civil servants speaking on such matters pre election. The impressive shortlist of authors highlighted the breadth of talent of legal writing and the judges found it a difficult task to pick a winner in each of the three categories which were as follows: • Law Book of the Year award, sponsored by ByrneWallace Solicitors. • Practical Law Book of the Year award, sponsored by Peter Fitzpatrick & Company cost accountants; and • Outstanding Contribution to Legal Scholarship, sponsored by Law Society Skillnets.
DBSA President Eamonn Shannon with the three winners Peter McKenna, Flor McCarthy and Dr Thomas B Courtney
The noteworthy and crowded field of nominees for Law Book of the Year included Medical Negligence and Childbirth (Doireann O’Mahony/ Bloomsbury Professional), Easements (3rd edition, Peter Bland/Round Hall Thomson Reuters), The Law of Intoxication (Michael Dillon/Round Hall
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Summer 2016 dsba.ie Photography: Paul Sherwood
Thomson Reuters), Damages (Tadgh Dorgan and Peter McKennna/Round Hall Thomson Reuters), Injunctions: Law and Practice (2nd edition, Brendan Kirwan/Round Hall Thomson Reuters), Equality in the Workplace (Alastair Purdy/Round Hall Thomson Reuters), Freedom of Information Law (Maeve McDonagh/ Round Hall Thomson Reuters), Privacy & Data Protection Law in Ireland (2nd edition, Denis Kelleher /Bloomsbury Professional), Keating on Probate (Albert Keating/Round Hall Thomson Reuters), The Law of Company Insolvency (3rd edition, Michael Forde, Hugh Kennedy, Daniel Simms/Round Hall Thomson Reuters), Modern Irish Competition Law (Philip Andrews, Paul Gorecki, David McFadden/ Wolters Kluwer). The worthy winner was Damages by Tadgh Dorgan and Peter McKenna. Michelle Ní Longáin, partner at ByrneWallace (sponsors) joined British Ambassador Dominick Chillcott to present the coveted award to Peter McKenna on behalf of the two authors. The Practical Law Book of the Year award was sponsored by Peter Fitzpatrick & Company cost accountants and the nominees included Drunken Driving (David Staunton/Round Hall Thomson Reuters), The Bloomsbury Professional’s Guide to the Companies Act 2014 (general editor Dr Thomas B. Courtney/Bloomsbury Professional), Landlord and Tenant Acts: Annotations, Commentary and Precedents (JCW Wylie, Bloomsbury Professional), The Solicitor’s Guide to Marketing and Growing a Business: How to turn your Legal Practice into a Financial Success (Flor McCarthy), The Trade Union and Industrial Acts (Anthony Kerr/Round Hall Thomson Reuters), Arthur Cox Employment Law Yearbook 2014 (Arthur Cox employment law team/Bloomsbury Professional), The Companies Acts 2014: An Annotation (Brian Conroy/Crowe Horwath/Round Hall Thomson Reuters). The judges’ choice for the winner of the Practical Law Book of the Year award was The Solicitor’s Guide to Marketing and Growing a Business: How to turn your Legal Practice into a Financial Success by Flor McCarthy. Eimear Fox from Peter Fitzpatrick & Co cost accountants (sponsor) joined British Ambassador Dominick Chilcott to present the award to Flor McCarthy. The Outstanding Contribution to Legal Scholarship award in collaboration with Law Society Skillnets was awarded to Dr Thomas B Courtney of Arthur Cox. The award was presented to Dr Courtney by the British Ambassador Dominick Chillcott and Brendan Twomey of Law Society Skillnets for his distinguished contribution to the law over many years. The annual DSBA Book Awards were held in conjunction with the DSBA’s annual dinner. The event was a tremendous success and a great night was had by everyone in attendance. Our congratulations to each author shortlisted and to each of the three worthy winners. Our thanks to our sponsors ByrneWallace Solicitors, Peter Fitzpatrick & Company cost accountants and Law Society Skillsnet without whom this event would not have been possible. P
Winner of the Law Book of the Year Award was Damages by Tadgh Dorgan and Peter McKenna (Round Hall Thomson Reuters). Pictured presenting the award to Peter McKenna who accepted the award on behalf of the two authors was the ambassador of the United Kingdom, Dominick John Chilcott, Michelle Ní Longáin, partner at ByrneWallace (sponsors) and DSBA President Eamonn Shannon
Winner of the Practical Law Book of the Year was The Solicitor’s Guide to Marketing and Growing a Business: How to turn your Legal Practice into a Financial Success by Flor McCarthy. Pictured presenting the award to Flor McCarthy was ambassador of the United Kingdon, Dominick John Chilcott, Eimear Fox from Peter Fitzpatrick & Co cost accountants (sponsor) and DSBA President Eamonn Shannon
Winner of the Outstanding Contribution to Legal Scholarship Award was Dr Thomas B Courtney of Arthur Cox. Pictured presenting the award to Dr Courtney was ambassador of the United Kingdom, Dominick John Chilcott, Brendan Twomey of Law Society Skillnets and DSBA President Eamonn Shannon the Parchment 11
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Stuart’s Sabbatical Leaves Parchment Vacuum The Parchment has been dealt a severe blow as the lynchpin and driving force of this publication takes a sabbatical. Stuart Gilhooly, the interviewer of the “cross examination” and author of the “closing argument” column is taking a step back from his journalism duties as he embarks on the year ahead as president of the Law Society
tuart takes up the prestigious position at Blackhall Place in November and will be dedicating all of his energies and focus on representing colleagues in the profession right around the country. Best known for his interview “the cross examination”, Stuart is known for his canny interview technique, an ability to get the most out of interviewees and most especially, his writing style and mastery of the pen. One of those rare species of solicitor who can both do the day job and write articles for the fun of it, Gilhooly won a global award at the Content Marketing Institute 2015 for his cross examination interview with family lawyer Muriel Walls. He was up against interviews from the Delta Airlines magazine and the Southern California Golf Association magazine as well as interviews in Australian and Singapore publications. Despite the fact that the other leading writers in the field were all full-time journalists, it didn’t prevent the Harold’s Cross personal injury guru from scooping the top accolade and coming out head and shoulders above the rest. Of course Stuart is no stranger to success. He won the coveted Journalist of the Year award at the 2011
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Commenting at the time, the Judges said “he showed outstanding versatility, a delightful quirky style that was engaging and a bit irreverent plus a challenging approach in his well-researched interviews with hardened lawyers”
Magazine Awards. The “cross examination” scribe was then awarded with the top prize for his outstanding series of articles and interviews in the Parchment. Commenting at the time, the judges said “he showed outstanding versatility, a delightful quirky style that was engaging and a bit irreverent plus a challenging approach in his well-researched interviews with hardened lawyers”. Over the years Stuart has interviewed the following people for the “cross examination” – Gerald Kean, Kevin O’Higgins, Moya Quinlan, Laurence K Shields, Mr Justice Richard Johnson, Miriam O’Callaghan, Alan Shatter, Padraig O’Riordan, Ken Murphy, Dermot Ahern, Frank Ward, Geraldine Clarke, Geraldine Kelly, Michael McDowell, Michael Finucane, Maurice Watkins, Senator Catherine Noone, Waheed Mudah, Keith Walsh, Justice Minister Frances Fitzgerald, Mr Justice Michael Peart, Peter McDonnell, Muriel Walls, Aaron McKenna, Kieran Conway, Lucinda Creighton, James MacGuill and Noeline Blackwell. By any stretch, an impressive list. We wish Stuart a very successful upcoming year as President of the Law Society. We will greatly miss his prolific writing, invaluable contributions, good humour and insightfulness. We shall be keeping the seat warm for you Stuart! P the Parchment 13
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Who Selects our Judges? Dr Jennifer Carroll MacNeill’s book on the Politics of Judicial Selection in Ireland is a must read for anyone interested in how we select our judiciary in this country. Keith Walsh reviews the book which was launched on May 31st by an Taoiseach and sets out some of the highlights of this essential read
he current Programme for Government includes a commitment to introducing legislation to replace the Judicial Appointments Advisory Board (JAAB) with a new Judicial Appointments Commission (‘the Shane Ross proposal’). MacNeill’s text will inform the debate on any new legislation introduced in this area. It is not a purely academic book but one that will be read by the judiciary and lawyers interested in understanding how the system of appointment of judges actually works in practice and how this system could be improved. It is an unlikely page turner but the layout and skill of the author have made it an accessible and enjoyable read. Over 40 key players involved in judicial selection were interviewed for this book, including two former Taoisigh, nine former AGs, six former Ministers for Justice, and 19 JAAB members. The author is uniquely placed to analyse the information available as before qualifying as a barrister she was a solicitor, and has worked as legal advisor in the office of the leader of Fine Gael. She was also special adviser in the Department of Children and Youth Affairs and in the Department of Justice and Equality. She conducted a previous study in 2004 on the background of superior court judges and on the politics and processes of judicial appointments. She won the Basil Chubb Prize in 2015 for the best politics PhD in Ireland which presumably formed the basis for this book. Dr Carroll MacNeill takes us through the introduction of the Judicial Appointments Advisory Board in 1995 following the previous administration’s handling of the appointment of Harry Whelehan as president of the High Court and his subsequent resignation. The objective of this new system of judicial appointment was to solve a political problem, which it did. However, it did not address the need to put into place a transparent system of judicial selection.
Current Problems with the System of Judicial Appointment Dr Carroll MacNeill identifies the main problem with
the current JAAB system as arising from what the author terms the JAAB’s ‘literal’ interpretation of section 16 of the Court and Court Officers Act 1995. This section states that the board must recommend to the Minister for Justice at least seven names for each judicial office where it has been asked to do so. The author says that since the early 2000s the JAAB decided to submit all suitable applicants for judicial vacancies to the minister, only removing the unsuitable candidates. This resulted in a greater degree of discretion remaining with the minister than was anticipated as well as a huge number of applicants going forward to the minister, especially for district court posts where you might have 100 applications.
Most Important Factor in Being Appointed a Judge in the Current System While anecdotal evidence may suggest that political connections are the most important factor in selection to become a judge, based on the interviews conducted by Dr Carroll MacNeill, she believes that being known to the key decision makers is the critical factor. Political connections are important for district court appointments but become much less important when superior court appointments are being considered as high court judges have the power of judicial review. And almost all of the key decision makers indicated to the author that their universal concern in appointing a judge was they ‘could not be removed and would be found over time to be technically or temperamentally unsuitable as a judge’.
Who are the Key Decision Makers They are the Taoiseach, Attorney General, Minister for Justice and in a coalition, the leader of the other party. The Attorney General sits both at cabinet and on the JAAB, so can bring discussions of the JAAB to the attention of the Taoiseach and Minister for Justice. Dr Carroll McNeill has concluded that these three office holders make the ultimate decision to appoint a judge and the Minister for Justice brings just one name for
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Summer 2016 dsba.ie Keith Walsh is the principal of Keith Walsh Solicitors, Crumlin. He is a former President of the DSBA and former Editor of the Parchment
each vacancy to the cabinet. The role of the cabinet in this decision appears to be simply to confirm the appointment. While the AG will be relied upon to attest that the candidate is ‘solid’ (or in the words of Sir Humphrey ‘sound’), no appointment will be made without the agreement of the Taoiseach and previous Taoisigh have indicated to the author their reliance on the AG. The role of the Minister for Justice seems less central although they receive two lists from the JAAB as follows: (1) names of all applicants (2) names and details of all suitable applicants. They also notify the successful candidate (although previously in the case of district court judges this was performed by the constituency TD of the new judge). The JAAB is chaired by the Chief Justice and is comprised of the President of the High, Circuit and District Court, one nominee from the Law Society and one from the Bar Council and three lay members appointed by the Minister for Justice. The Law Society representative seems to be consulted particularly in relation to the soundness of solicitors applying.
Proposals for Reform of the System Following consultation initiated by the Minister for Justice in December 2013 a number of submissions regarding reform were made by the Law Society, the Bar Council, FLAC, ICCL and the Judicial Appointments Review Committee which was a committee of senior judges including the Chief Justice and Presidents of the High, Circuit and District Courts. Among the reforms which were common to two or more of these bodies were: • Only three candidates should be submitted by JAAB to the minister (not ‘at least seven’) • Where serving judges are to be promoted then these applications should be processed through JAAB • The criteria for being eligible to beome a judge should be set out in greater detail • A more formal evaluation process of candidates should be carried out by JAAB • Experience requirements should be harmonised across the various courts • Increase the lay membership of JAAB and selection of lay members by public and open competition, plus include a broader range of representatives of civil society • JAAB should have specific processes to promote diversity. The author’s proposals for reform are slightly different. She proposes first that changes be made to the process of how JAAB operates – increasing institutional resources and supports; developing new criteria for interviewing and shortlisting of candidates; developing more communication between JAAB and candidates and more engagement between the minister and JAAB to identify areas of legal expertise that may be required at a point in time. Also that the minister should make an annual statement to the Oireachtas on judicial selection. Interestingly Dr Carroll MacNeill does not propose a reduction from seven to three candidates immediately, but believes around seven candidates should be selected
by JAAB. Once the process changes have been carried out and the necessary legislative amendments made then the ‘merit’ principle should be established as the paramount consideration, the ban on lobbying by judicial candidates or persons on their behalf should be extended from the current prohibition against lobbying JAAB members only, to include a prohibition on lobbying members of the Oireachtas and members of the judiciary. She also advocates many of the proposals set out in the consultation submissions above as well as considering in-house lawyers for judicial positions.
Solicitors Still the Poor Relation When it Comes to Judicial Appointments in the Circuit and Superior Courts Another theme that emerges from this book is the lack of solicitors appointed to the circuit court since 1995 and to the superior courts since 2002. We still await the first solicitor to be appointed to the Supreme Court [11 vacancies 2002-2014] and six solicitors to date have been appointed to the High Court from 50 vacancies in the period 2002-2014. As many as 294 applications for high court vacancies from solicitors were received by JAAB in the same period. One solicitor has been appointed to the Court of Appeal.
Where Next? We await either a consultation proposal from the Department of Justice and Equality or the introduction of heads of a bill or a draft bill in relation to Shane Ross’s proposed changes to the system of judicial appointment. Given that the previous consultation period ended over 2½ years ago and was meant to lead to a Judicial Council Bill which never arrived, perhaps we should not expect too much too soon but this should not take away from the achievement of the author of this book in separating fact from fiction and shining a very bright light on how judges are chosen in Ireland in 2016. This thought provoking work by Jennifer Carroll MacNeill is a timely and essential addition to the debate on how judges should be appointed in Ireland.
We still await the first solicitor to be appointed to the Supreme Court [11 vacancies 2002-2014] and six solicitors to date have been appointed to the high court from 50 vacancies in the period 2002-2014
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Swearing Oaths The President of the High Court, Mr Justice Peter Kelly ruled in a case last April that unless a deponent has no religious belief, or the taking of an oath is contrary to his or her religious beliefs, an affidavit must be sworn on the Bible (or other religious text). Andrew Cody examines the history of oaths and provides practice advice on oaths in the digital age
he President of the High Court was recently critical of two solicitors involved in the swearing of an affidavit in support of a bail application. The solicitor administering the oath explained that they were unable to locate a Bible and accordingly the deponent affirmed. He correctly observed that the unavailability of a Bible did not mean that an affirmation was available as an alternative.
History of Oaths Oaths are an ancient method of securing a guarantee of truth, which date back to prehistoric times. In ancient history one person demanding that the other would tell the truth would insist on the truth being told in the name of a being which, the other feared and held in awe. Witnesses were sworn in as early as Roman times, but the practice could have been around for some time by then. In the British Isles certainly the oath was administered from approximately 500 AD. As the common law system developed, the prevailing religion was Christianity and oaths were therefore modelled upon the assumption that the swearer was a Christian and contained an appeal to the Christian God and usually involved either the Bible or some other sacred relic. The assumption in medieval times was that non-Christians were all “heathens” and were therefore wholly unfit to be believed. The only other religion contemplated in those times was Judaism and Jews were allowed to swear upon the New Testament. Witnesses were not allowed to give evidence unless they did so under the sanctity of an oath which was thought to be the strongest possible guarantee of truth. In the late 18th and early 19th centuries only Jews and Christians could give evidence but those with no religion could not, because “they believed in nothing.” With the growth in religious toleration however, the legal world eventually came to accept that atheists might, on some occasions actually tell the truth. Eventually in the mid-19th century the British Parliament passed a law allowing witnesses in court cases to make a solemn promise and declaration that his or her evidence would be the truth, the whole truth and nothing but the truth.
Oath or Affirmation? The Oaths Act of 1838 which is still in force in Ireland requires oaths states: “In all cases in which an oath may lawfully be and shall have been administered to any person… provided the same shall have been administered in such form and with such ceremonies as such person may declare to be binding; and every such person in case of wilful false swearing may be convicted of the crime of perjury in the same manner as if the oath had been administered in the form and with the ceremonies most commonly adopted.” So the nature and number of oaths that can be sworn is as varied as the amount of religions, however colourful. The Oaths Act 1888 provided that a person who objected to being sworn might make a solemn affirmation instead, if the basis of their objection was that they had no religious belief or that the taking of an oath was contrary to their religious belief. Under the Oaths Act 1909 Christians and Jews are obliged to follow the form of oath set out in Section 2 (1), namely swearing with an uplifted Old Testament or New Testament in their hand. A Christian or a Jew who does not wish to follow that form cannot affirm because under Section 1 of the Oaths Act 1888 a person cannot affirm unless he professes to have no religious belief or that the taking of an oath is contrary to his religious belief. It seems to have become the practice that in court a witness places his right hand on the Bible. In law the witness must hold the Bible “uplifted” in his hand. If a person taking the oath is religious but is neither a Christian nor a Jew, the oath is to be administered in any manner which is lawful. The English Parliament recognising the problems associated with these acts have passed amending legislation, but we have not. There was some controversy recently when the then Tánaiste Eamon Gilmore, an agnostic, attended the Council of State which required him to swear an oath set out in Article 31 of the Constitution that he would “faithfully and conscientiously” fulfill his duties “in the presence of Almighty God.” Mr Gilmore said that he took legal advice before taking the required oath.
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Summer 2016 dsba.ie Andrew Cody is a partner at Reidy Stafford Solicitors in Newbridge, Co Kildare. He is also a former council member of the Law Society and is a former chairman of the Complaints and Client Relations Committee
Law Reform Commission Report In 1990 the Law Reform Commission started by saying: “Clearly, the present law is in a number of respects unsatisfactory. In the first place, it has been seen that many forms of oath are at best embarrassing and at worst offensive to the religious beliefs of the persons to whom they are meant to apply.” They then concluded that: “Having reviewed all these factors, and in particular having regard to our conclusion that the oath offers little or no greater security for the truth than a statutory affirmation, the Commission considers that the potential prejudice to witnesses and jurors who choose to affirm, together with the great attraction of providing for a universal and simplified procedure which would place all persons on an equal footing, weighs in favour of the abolition of the oath generally”. Its recommendation was that the oath should be abolished for witnesses and jurors and for deponents submitting affidavits in all proceedings, civil and criminal and replaced with the following form of affirmation: “I, A.B., do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth and nothing but the truth. I am aware that if I knowingly give false evidence I may be prosecuted for perjury.”
Oaths in a Digital Age Suzi LeVine was sworn in as the new American ambassador to Switzerland and Liechtenstein in 2014 by taking the Oath of Office on an electronic copy of the US Constitution. The former Microsoft executive solemnly swore her Oath of Office with her hand on a kindle. She had opened the US Constitution at the 19th Amendment which states “that no citizen should be prevented from voting on account of their sex. LeVine explained her reasons as follows: “as cool as a copy of the Constitution from the 18th century would have been, I wanted to use a copy that is from the 21st century and that reflects my passion for technology
and my hope for the future”. LeVine was not the first American official to take the Oath of Office using an electronic device. In 2013 a group of fire fighters from Atlantic City used a Bible app downloaded on to an iPad and in early 2014, a Long Island county executive took his oath in the same way. In both cases the use of the iPad was impromptu as no one had remembered to bring a printed copy of the bible and an iPad happened to be at hand. Under the Electronic Commerce Act 2000, (Section 9) “information (includes all forms of writing) shall not be denied legal effect, validity or enforceability solely on the grounds that it is wholly or partly in electronic form, whether it has an electronic communication or otherwise”. Section 10 states that Sections 12 to 13 are without prejudice to the law governing the making of an affidavit. Sections 12 to 23 deal with the requirements for documents to be signed and witnessed. As Section 9 was not excluded it appears to me that the use of a digital Bible is permitted in the swearing of an oath. Bibles and other holy books demonstrate our beliefs and virtues and bring a physical aspect to the taking of an oath which would otherwise be only verbal. Bibles are sacred documents and very often handed down through generations and in history recorded the significant milestones of each of those generations. By contrast the Kindle, iPad or iPhone are much like any other electronic device, and do not represent family history. Some will say that digital versions are not as holy but is an LCD screen any less holy than paper and ink? On the other hand the common definition of holy is that of being set aside for religious purposes. An app digitally mixed with Facebook, Twitter, RBS 6 Nations and dozens of other apps and programmes is hardly set aside for religious purposes. One thing however is true, digital versions of the Bible symbolise a modern commonality, mainly the amount of time all of us spend looking at a screen. Purists will be horrified at the sight of a deponent holding an iPhone in his uplifted hand and saying “I swear by Almighty God”. It emphasises for the believers and non-believers that the time has come for the simple solution proposed by the Law Reform Commission to be implemented without further delay. P
Bibles and other holy books demonstrate our beliefs and virtues and bring a physical aspect to the taking of an oath which would otherwise be only verbal
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Artificial Intelligence and the Law With the computerisation of many aspects of daily life and in the workplace, Flor McCarthy assesses where solicitors stand in an age of such modern technology
n 1894 The Times newspaper predicted: “In 50 years, every street in London will be buried under nine feet of manure.” It was a full-blown crisis that consumed the minds of Londoners facing an ever-increasing rise in population and associated transportation, all of which was horse drawn. How would cities cope with the unsustainable growth in the volume of horse manure? But of course, by 1912 the problem had resolved itself entirely. By a means that few in 1894 could have foreseen. So much so in fact, that Henry Ford remarked about market research that if he’d asked people in advance what they wanted, they’d have told him “faster horses”. The point is, we don’t know what we don’t know. We live at the end of history and can only see what is behind us. We find it very difficult to conceive of what might be in front. And because of various cognitive biases that we suffer from, we have a very difficult time in believing something is real until we see actual proof. Go back to 1985’s Marty McFly and tell him about what IT and the internet is going to do for the way we live and he would
So we are looking at intelligent computer legal assistants, not in the future: now. They have the capacity to assist with and triage very significant amounts of the work we do. They don’t need sleep and they’re not concerned about their work life balance
find tales of the things we take for granted today as farfetched as hover cars. But it has happened. Gordon Moore was co-founder of Intel and gave his name to the law that states that computing power reliably doubles every two years. This exponential rate of growth means that as we go along, the rate of progress accelerates extraordinarily rapidly. Take a modern teenager back to 1985 and they’d suffer far greater shock than Marty McFly did going back the same period to 1955. The rate of acceleration of the pace of change is the key; and the fact that we only really understand what we’ve already seen. Artificial intelligence (AI) is a bit of a buzzword; many are using it to predict the wholesale decline of knowledge workers. And lawyers are among the oldest knowledge workers around. (There’s only one profession older and it’s probably more concerned about virtual reality than AI.) So where does it leave us? Well, AI is a huge topic. In fact, the prospect of what is referred to as general AI is probably the most important question facing mankind: when the machines become smarter than we are.It’s of truly existential importance but is outside the scope of this article. What we are concerned with as legal professionals is narrow AI. And that’s already everywhere: Siri, the braking systems of modern cars, Google translate. Narrow AI enables machines to learn to do very specific things. And they do them very well. Machines beat the best humans at chess and IBM’s Watson can beat the best humans at the game show Jeopardy! Machines are really good at doing things that humans find hard; things like learning complicated rules and remembering how they apply in an everincreasing number of scenarios. Law is a perfect candidate for narrow AI.
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Summer 2016 dsba.ie Flor McCarthy is a managing partner of McCarthy & Co Solicitors and is author of The Solicitor’s Guide to Marketing and Growing a Business; How to Turn Your Legal Practice into a Financial Success, www.thesolicitorsguide.com
However, the funny thing is, what humans find really hard, machines can learn with surprising ease. But what humans find effortless, machines find impossible; for now. A machine may beat Gary Kasporov at chess but show a machine a funny shaped B and it will have a hard time reading it, or show it a dog and ask it if it is a dog or a cat and suddenly Watson is not such a clever clogs after all. Right now narrow AI is already at work in law; it will sift through large volumes of discovery far faster and more cost effectively than teams of associates. Just in April, Riverview Law in the UK announced the worldwide launch of their legal virtual assistants for inhouse lawyers powered by AI they call Kim; providing for their clients the AI systems they had previously been using themselves. So what should lawyers do? Just fold our tents? Legal tech seer Professor Richard Susskind has long been predicting the demise of the types of work that large numbers of lawyers rely on for their bread and butter by just these types of technologies. In fact, in his book Tomorrow’s Lawyers, when asked why he did not pay more attention to general purpose small firms he said “I do not see much of a future (beyond 2020) for most small firms in liberalised regimes”. But wait; there’s hope! We do have to change; the machines will do a much better job than we will at what comprises a lot of transactional work and significant parts of litigation: requisitions on title, notices for particulars, document
drafting, document review on discovery, etc. The basis of this technology is already available; IBM’s Watson is currently free to anyone to use, as is the entry level version of Riverview Law’s Kim. So we are looking at intelligent computer legal assistants, not in the future: now. They have the capacity to assist with and triage very significant amounts of the work we do. They don’t need sleep and they’re not concerned about their work/life balance. They are also an awful lot faster and more accurate at the limited range of things they can do. It goes without saying that to succeed we need to embrace and harness what this technology will enable us to do as it evolves. There is little point in hoping or pretending it won’t happen; it already has. But the really important thing is to identify those valuable things that we will always remain better placed to do than the most advanced machines: to develop real relationships of trust and empathy with the people who need our help. Those who find themselves in need of legal services tend to do so facing serious problems that are entirely alien to them, often facing well-resourced corporate or State interests. For as long as they do, they are likely to want a trusted human professional on their side: the future security of the small firm practitioner depends on our ability to foster trusted relationships with the people who really need us in the process of providing a valuable service that keeps pace with the technology that is available to us. We only become redundant if we fail in that. P the Parchment 19
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The Road Less Travelled At an age when many people are winding down and considering retiring to the back garden, Noeline Blackwell celebrated her 60th birthday by leaving the relative comfort zone of FLAC and taking on the emotional rollercoaster of the Dublin Rape Crisis Centre (DRCC). Stuart Gilhooly met Tipperary’s tour de force and tried to get a word in edgeways
hat first struck me were the tissues. It’s obvious why they were there but poignant and unusual in a waiting room nonetheless. Something else wasn’t right though and I couldn’t put my finger on it initially. Then it came to me. The seats were facing the wall. As feng shui goes, this wasn’t winning any design awards so when Noeline swishes in, I ask her why the chairs are arranged in such a manner. She seems equally nonplussed but her receptionist explains that many visitors don’t wish to look at each other and often prefer to look at anything other than another human being. And that’s when it struck home before I’d even spoken to the new CEO of the Dublin Rape Crisis Centre. This wasn’t an ordinary job, it’s not a 9-5, tune out when you close the office door type of role. The stories are too real, the hurt too raw and the effects too life-changing to just switch off and watch Coronation Street.
Tougher than the Rest
There is a new EU victims’ directive coming in that has to be implemented and there’s also new human rights legislation dealing with domestic and sexual violence against women and I thought these are all legal concepts, this bit I know how to do
But that’s what Noeline Blackwell does. She doesn’t take the path of least resistance, she challenges injustice and goes spoiling for a fight. And when she takes the gloves off, she likes to win. After over 10 years as the director of the Free Legal Advice Centres (FLAC) where she became almost ubiquitous in the media and her name became synonymous with the organisation, why up sticks at a time when things were at least beginning to look up? “I had been with FLAC for over 10 years and I had been through a certain cycle, particularly around the recession and while I was busy telling people that the recession wasn’t over for everyone, the truth was that I had to reframe the arguments in some way. Meanwhile I was thinking ‘am I bringing enough to justify staying on here’?” A random social conversation brought home to her that sexual and domestic violence, far from reducing in prevalence, had in fact been increasing.
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Summer 2016 dsba.ie Stuart Gilhooly is a partner at HJ Ward & Co Solicitors and former president of the DSBA. He has won a number of journalistic awards for his writing
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It’s well-rehearsed territory in the NGO community that ten years is long enough as a CEO. But I was not a bit unhappy with FLAC. I’m still nearly homesick sometimes when I think about it, but I know it was the right time to move on “So when I saw that Ellen O’Malley Dunlop [her predecessor] was leaving here and her job was advertised, I thought not only can I do that job but perhaps I should because I thought maybe this is something where I can add some value in an area that’s really important in Irish Life. “There is a new EU victims’ directive coming in that has to be implemented and there’s also new human rights legislation dealing with domestic and sexual violence against women and I thought these are all legal concepts, this bit I know how to do.” By coincidence, her predecessor had also been in the job for about ten years. “It’s well-rehearsed territory in the NGO community that ten years is long enough as a CEO. But I was not a bit unhappy with FLAC. I’m still nearly homesick sometimes when I think about it, but I know it was the right time to move on.”
Human Touch There is no doubt that the she has the legal, human rights and media pedigree for such a public and complex role, but what about necessary empathy and understanding that comes with dealing with victims of what are often unspeakable crimes? She laughs uproariously, as she often does, not inappropriately but to demonstrate her failings. “Many years ago when I first came to Dublin and set up in practice in the 1980s, I applied to be a volunteer at the Dublin Rape Crisis Centre and I did the course over six long weekends. I failed it on the last day and the reason they correctly identified was that I was too bossy and too directive.” She laughs again, self-deprecatingly, and this is a common theme during our talk. She frequently talks herself down and consistently fails to mention her achievements or many roles. Luckily for the DRCC, it has many excellent volunteers and doesn’t need to rely on Noeline’s dubious counselling skills. It receives 12,000 calls to the helpline per year and somewhat surprisingly, 20% are now from men.
“The number of men calling is increasing quite starkly, though the level at which they are getting therapy possibly isn’t. We are trying to find out what the profile is at the moment but there seems to be a level at which it is male-on-male violence but we don’t know for sure at the moment, we are still looking at the figures.”
Working on a Dream Her role is obviously less hands on than counselling volunteers and she has a very clear idea of what she wants to set out to achieve. “Ensuring that the justice system and our legislation protects people as far as possible and that we work on areas where we can prevent the harm as much as possible, such as the campaign the students are doing at the moment identifying what consent is”. She is concerned that rape and sexual assault continue to be reported less frequently than they occur and, as a consequence, are under-prosecuted. “This is an area that’s totally underreported and then there is an inconsistency on how it’s followed through.” The reasons are myriad but fear appears to loom large. “To face your perpetrator who for the most part is known to you, and then to have to take that through to prosecution is very difficult. Not only has a person been violated by sexual assault, but to report it can be very disruptive in a family, workplace or friendship group where people have to take sides and it can cause all sorts of divisions.” She is only two months into the job and appears to have grasped a lot of the challenges already. It’s only a matter of time before the street fighter is back on the airwaves demanding reform as she has done throughout her career.
Local Hero Like many pioneers before her, she comes from a normal background. Born in Tipperary to a teaching mother and a father who managed a creamery, she had no legal background whatsoever. She was taught in Dublin at Loreto on the Green because her
aunt was a teacher and her initial leanings were towards the educational side though a chance conversation led towards a law degree and from the first day in UCD, she knew it was the right decision. “I absolutely loved law from the moment I started. It was an absolute gift I was given. I had no legal connections. I got through the old systems where you could do your apprenticeship at the same time as your degree and I got my apprenticeship with a fabulous man, Kieran Flynn, in Tipperary who only took me on because his mother knew my mother, who was also a teacher.” Her classmates included Elio Malocco and Supreme Court judge Elizabeth Dunne, two extreme examples of how divergent career paths can be. She qualified in 1977 at the age of 21 and immediately set her sights on the bright lights of Dublin. Kieran Flynn had other ideas. “I went into Mr Flynn and said ‘I’m leaving’ and he said ‘you’re not, you know nothing’. With the college degree and Law Society exams, I’d spent about five days in the office and he wasn’t letting me out. So I said six months, he said two years and we compromised on a year. Five years later, I was still there.” After this, and a period where she was the only woman practising in Tipperary town, she spent a year in Navan as a tax lawyer and then came to Dublin where she set up her own practice. “Knowing nobody, never having practised in Dublin, I set up in Drumcondra and stayed there for 20 years.” Starting as a general practice, Noeline specialised in family law and immigration in latter years before having a brainstorm in 2004. She was doing more and more immigration work and decided on a plan that would allow her to take a more academic approach to the area. “I closed my practice and the plan was that I would do locum work for some months of the year, take a decent holiday for myself and then do some thinking and writing in refugee cases. Before I had a chance to implement my hare-brained plan, I heard of the FLAC director general job becoming available and so I applied for it.”
The Rising While, up to now, she had been quietly making waves in the human rights area, a combination of her tenacious nature, infectious enthusiasm and clever debating skills saw her become a media darling and household name during the economic downturn. Typically she puts her meteoric rise down to the work of others.
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Summer 2016 dsba.ie
Photography: Bryan Meade
“My profile did rise during the recession. That had very little to do with me and a lot to do with work that others had been doing before I got there. This was particularly so around the area of financial rights and they had identified through Paul Joyce’s work on money lending that people were vulnerable. “The misery for people who were ashamed to say that they had fallen into financial debt, including some of our colleagues, feeling they were failures, was so wrong. And it’s not fixed yet although it is better since the insolvency and bankruptcy legislation came in.”
Noeline Blackwell at a glance
FAMILY Single HOBBIES Celebrating marriages and Bruce Springsteen idolatry FAVOURITE SINGER The Boss, of course FAVOURITE MOVIE Casablanca, it has the best lines GREATEST INFLUENCE ON LEGAL CAREER Kieran Flynn, a really thoroughly good teacher and lawyer
Born to Run Listening to this passion, overriding empathy and concern for her fellow citizens, I’m struck by how this energy and intelligent posturing could be utilised in an even more meaningful way. She laughs with far too much gusto though when I suggest she might consider a run at the presidency in two years. “I think any female lawyer who gets involved in human rights causes is seen as another Mary Robinson. I have no interest in it. You need to have the mentality to see what to do with that office and I don’t.” She is predictably dismissive and her denials seem genuine but she seems to have all the credentials for the job and don’t rule out this rumour appearing again as 2018 approaches. In the meantime, Noeline intends to pursue her two completely unrelated but fascinating hobbies of celebrating marriages and attending Bruce Springsteen concerts.
I Wanna Marry You She has recently trained to be a marriage celebrant. “Many years ago, on a beach in West Cork, a friend of mine asked me to do the celebration bit of their wedding and I’ve been saying for the past 20 years, I need to follow that up, so I have.” The reason I went after it now is that with the marriage equality referendum last year, there are lots of people I know who might be getting married and I want to be on the market to do their marriage.” So she will be marrying plenty of people but hasn’t ever been married herself. “I am not married and have no children and obviously that’s a lack in my life but it has allowed me to do a whole load of other things which I may not have been able to do if I had family commitments. “It’s not that I don’t have any regrets, I do, but I believe in the Robert Frost poem The Road Not Taken. ‘Two roads
diverged in a yellow wood and I took the one less travelled by and that has made all the difference’. I haven’t taken a better one, I’ve taken a different one.”
Glory Days What is clear is that the road she has travelled is less travelled as few can match her achievements, none of which she tells me about and I have to discover on a Google search. According to the Irish Times in January of this year she “is a trustee of Front Line, the international foundation for human rights defenders and a vice president of the International Federation of Human Rights. She also sits on the board of the Immigrant
Council of Ireland and the Citizens Information Board. She is an adjunct professor at Dublin City University’s school of law and government”. In 2012, Dearbhail McDonald, then legal affairs editor at the Irish Independent, named her as the most influential woman in the legal profession in this country. And yet, she is as modest and as selfdeprecating as anyone I’ve ever interviewed. She went to see her idol Bruce Springsteen in both concerts at Croke Park “because he might do different songs”. This bohemian, down to earth, street fighting rocker would make a great President. She might not like the idea but she really is born to run. P the Parchment 23
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Disclaimers and CAT Implications When it comes to post death capital acquisitions tax (CAT) and planning for the beneficiaries of an estate, Brian Broderick advises that disclaimers can be effective in distributing an estate more tax efficiently
S A disclaimer is the release of a right before it comes into possession so timing is important, and a beneficiary cannot disclaim after accepting a benefit
ome case law in the area of disclaimers dates back to the early 19th century so while disclaimers are often seen as an innovative means of redistributing an estate tax efficiently, the law on the area has been around for some time. The principal concept behind a disclaimer is that a beneficiary cannot be forced to accept a benefit. Any individual who does not want to take an inheritance can disclaim it so that the benefit passes on to the next beneficiary in line. Since Capital Acquisitions Tax was introduced in 1976 disclaiming beneficiaries of an estate are treated as never having received the disclaimed benefit for CAT purposes.
tax efficient. Such arrangements are generally taxed as an inheritance followed by a gift, so part of the value may be taxed twice. The CAT on the inheritance would arise under group (a) if the testator was a parent and the gift would be a group (b) benefit if the beneficiaries are siblings. If the same result could be achieved by executing a disclaimer (or a series of disclaimers) it may be possible to reduce the overall CAT liabilities as each beneficiary would be treated as simply inheriting from the parent. If there is still some dissension between the beneficiaries a series of disclaimers can be drafted to be interdependent, so that if one beneficiary reneges on the agreement the other disclaimers do not take effect.
Use of Disclaimers
The Operation of Disclaimers
There are many scenarios in which a family can use disclaimers effectively. For example, one beneficiary may have a greater need for the assets of an estate than other beneficiaries, and the family may prefer the estate to pass to the beneficiary in need. A deceased parent may have wanted to prioritise a particular child, but failed to take the formal step of executing a will, in which case children may decide to give effect to a parent’s wishes, using disclaimers. In other cases, some beneficiaries might have full CAT thresholds available while other thresholds have been eroded or used up by prior benefits. Disclaimers may have the effect of redirecting the estate to the beneficiaries who can shelter the inheritance using thresholds. Disclaimers can also be useful in cases where there has been a dispute in a family and the beneficiaries have come to an agreement as to how the estate will be distributed. If the beneficiaries have not taken any steps to litigate, a settlement is likely to take the form of a Deed of Family Arrangement, which may not be
A disclaimer is the release of a right before it comes into possession so timing is important, and a beneficiary cannot disclaim after accepting a benefit. The question of disclaimers should be considered as soon as possible after a death. A disclaimer can be withdrawn unless consideration has been paid for it; or some person has altered his position in reliance on the disclaimer. There are no tax implications for the original beneficiary on a “pure disclaimer” – i.e. one where the beneficiary of an estate simply gives up the benefit, and this is provided for in S. 12 of the Capital Acquisitions Tax Consolidation Act 2003 (CATCA 2003). The receiving beneficiary (who takes the disclaimed benefit) is treated for tax purposes as receiving it from the deceased. A disclaimer cannot be made in favour of a particular person. If the “disclaimer” directs that the property is to pass to a particular party, it is not a pure disclaimer and the transaction will be taxed as an inheritance followed by a gift from the person “disclaiming”, with
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Summer 2016 dsba.ie Brian Broderick is a tax practitioner at Oâ€™Hanlon Tax Ltd
the usual CGT, stamp duty and gift tax implications.
Disclaimer for Payment It is possible for a person disclaiming a benefit to receive a payment from the estate in return, and in such cases the payment in money or moneyâ€™s worth will be taxed as an inheritance from the deceased.
the other joint tenant(s) and subject to CAT, CGT and stamp duty as appropriate.
It is important to establish who will become entitled to the benefit after it is disclaimed to see if it will give the outcome desired by the client. The disclaimer of an interest under a will generally accelerates subsequent interests. If a specific benefit is disclaimed, the asset disclaimed would generally pass into the residue of an estate, and if the residue is subsequently disclaimed the asset would pass in line with the rules of intestacy. If a life interest or other limited interest is disclaimed the next interest (generally the remainder interest) will fall into possession. If there is an intervening interest that interest will be accelerated.
Intestate disclaimers can be more complex, in terms of redirecting the assets. S.72A Succession Act 1965 provides that assets pass to the persons determined by law, and deems certain relatives not to exist. S.72A provides that: where the estate, or part ...is disclaimed ...the estate or part .... shall be distributed.... (i) as if the person disclaiming had died immediately before the death of the intestate, and (ii) if that person is not the spouse or a direct lineal ancestor of the intestate, as if that person had died without leaving issue.â€? This clause may give rise to problems where a child decides to disclaim, assuming that the disclaimed intestate share will pass to his own children, but in practice under S.72A he will be deemed to have died without issue so the benefit will pass to the next of kin (generally his siblings).
As detailed above an asset left specifically to a particular beneficiary would generally pass into the residue of an estate if it is disclaimed. If a beneficiary is given more than one benefit under a will, he is free to disclaim all or some of the benefits. However if he takes a single benefit he cannot disclaim part of it unless he has power to partially disclaim under the terms of the will. One of two or more joint tenants under a will cannot disclaim on his own though he can release his interest to another joint tenant or all of the joint tenants can come together and disclaim. A release by a joint tenant would generally be treated as a gift to
While it is advisable to plan the devolution of an estate before a disponer passes away this is not always possible, for a wide variety of reasons. Pre-death planning should of course take account of the tax implications but while it is always best to tax plan in advance, there can sometimes be scope to build tax efficiencies into an estate following the death of a disponer. Disclaimers can be a very useful tool for redistributing an estate if the benefit will then pass by law to the relevant beneficiary. It is important to thoroughly analyse the effect of any planned disclaimers to ensure that the intended beneficiaries will take the assets and that the tax implications are clear. P
How do Assets pass Post Disclaimer?
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Meet Gerard Rudden Gerard Rudden is a senior partner at Ahern Rudden Quigley Solicitors in the heart of Dublin 2. Gerard leads the litigation, dispute resolution and insolvency teams. Julie Doyle met the recent recipient of the Irish Law Award 2016 Litigation Case of the Year for his representation of Max Schrems in the landmark ECJ decision of Schrems v Data Protection Commissioner
Tell us a little about your background, where you grew up and what led you to choose a life in law? I was born and raised (and still live) on the northside of Dublin and am the youngest of four children. It is very difficult to pinpoint when I actually made that decision. It probably wasn’t until I was in my final year at university that I fully made my mind up. I always had an interest in law and the news stories that would interest me most invariably involved court cases. Where did you serve your apprenticeship and when did you qualify? I served my apprenticeship in a previous incarnation of our current firm, Ahern O’Shea. I was apprenticed to my now partner Stephen Ahern. I qualified in 2003. What intrigues you about law? The variety of the work and the challenges that the work brings is what intrigues me the most. Every single case, no matter how big or small, brings something unique. Every day is different and brings new
challenges. In such an environment, it is impossible to become stale at your job. The law is ever changing. It is essential for every practitioner to keep up to date with developments in their own area of practice. Did you always want to be a litigator? Not at all! During my apprenticeship, my preference was actually for conveyancing. Shortly after qualifying, the partner who had dealt with litigation in the firm left the firm. I replaced him as a partner and took over his varied litigation work in the firm. What drives you when you are running a case? A number of factors drive me when running a case. However, the overwhelming priority always has to be to obtain the best result possible for the client. Most of my work is for repeat clients who have a number of cases at any time. It is vital that your clients trust you to do the best for them. That is the best way, in my view, to retain clients. The Schrems case has made international headlines. Your client, an
Austrian law student called Max Schrems took a judicial review of a decision of the Irish Data Commissioner which was then referred to the ECJ by the Irish high court. Can you tell us a little about his original decision to seek a judicial review of the DPC’s determination of his complaint? Max’s detailed complaint to the Data Protection Commissioner (DPC) was essentially that the transfer of his data from Facebook Ireland Limited to Facebook Inc breached our data protection acts and the underlying directive by reason that Facebook could not be deemed to provide adequate protection to his data in circumstances where the security authorities of the US had unfettered access to his data. The DPC made a finding that Max’s complaint was “frivolous and vexatious” by reason of the existence of the Safe Harbour Decision. The Safe Harbour Decision was a decision of the European Commission
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Summer 2016 dsba.ie Julie Doyle is a solicitor at Beauchamps and is a member of the DSBA Parchment committee
whereby US companies would be deemed to have provided adequate protection for the purposes of the directive if they had signed up to the Safe Harbour principles. The DPC concluded that Max’s complaint could not succeed in circumstances where Facebook Inc had signed up to the Safe Harbour principles. Obviously, Max disagreed with the DPC’s finding that his complaint was “frivolous and vexatious”. Given the issues involved and the seemingly nonsensical notion that a DPC cannot investigate a most serious and far reaching complaint in
relation to a massive breach of data privacy (a fundamental right guaranteed by the Charter of Fundamental Rights) affecting hundreds of millions of EU citizens, Max felt compelled to judicially review this finding. How was Mr Schrems aware that his data specifically had been collected and passed from the EU to the US? Facebook Ireland Limited did not operate any data centres or processing facilities in Europe. It outsourced its processing of users’ data to its parent company, Facebook Inc, located in the US. Therefore, European
citizens’ data was processed in data centres in the US. Justice Hogan then directed that the matter be referred to the ECJ for direction. On what grounds was the matter referred? The question that was referred to the ECJ was effectively whether, in the course of a complaint that a person’s data is being transferred to a third country that does not provide adequate protection. The DPC was absolutely bound by the Safe Harbour decision having regard to Articles 7, 8 and 47 of the Charter of Fundamental Rights and Article 25(6) of Directive 95/46 EC. the Parchment 27
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Now that the Safe Harbour decision has been declared invalid, large tech companies are using other alternative transfer methods to attempt to legitimise the transfer of data from the EU to the US
Or alternatively, must the DPC carry out an investigation in light of factual developments since the Safe Harbour decision was implemented? The case has had major implications for EU/US data flows and US internet companies operating in Europe. What was the outcome of the decision of the ECJ and how does it affect the ordinary Facebook or Google user? The CJEU held that the existence of the Safe Harbour decision did not prevent the DPC from investigating a complaint such as Max’s and also held that the Safe Harbour decision was, in fact, invalid. Now that the Safe Harbour decision has been declared invalid, large tech companies are using other alternative transfer methods to attempt to legitimise the transfer of data from the EU to the US. For example, standard contractual clauses pursuant to three commission decisions are currently being used. However, each of those commission decisions contains a clause that allows a DPC to suspend data flow where “it is established that the law to which the data importer is subject, imposes upon him requirements to derogate from the relevant data protection rules which go beyond the restrictions necessary in a democratic society as provided for in Article 13 of Directive 95/46/EC where those requirements are likely to have a substantial adverse effect on the guarantees provided by the standard contractual clauses”. The CJEU has clearly established in the Schrems case that indiscriminate mass surveillance carried out by the US authorities goes beyond what is acceptable pursuant to Article 13 of Directive 95/46/ EC. Therefore, where US companies are subject to surveillance, their reliance on standard contractual clauses may not withstand a challenge to a national DPC or a court. The rules of the CJEU prohibit publishing or citing from its submissions to prevent public pressure on member states. But there appears to be little disagreement that “mass surveillance” by the US is a fact. This was found as a matter of fact by the high court. Can we ever prevent “Big Brother” from watching us? Who knows! Cases like the Schrems case are so important in that they highlight these issues and make the public aware of what is actually going on. The simple solution for companies like Facebook Ireland Limited to avoid surveillance of EU users’ data by the US Authorities is to set up data centres in Europe to process the data of European citizens. I understand
that such a data centre is currently under construction in Clonee. However, that does not deal with surveillance undertaken by the EU member states themselves! Edward Snowden risked his personal safety in order to reveal PRISM to the world and on foot of which Max Schrems made his initial complaint to the DPC. We are all aware of the recent political fallout as a result of whistleblowing allegations. Do you think the Protected Disclosures Act 2014 offers full protection to any potential future whistleblowers? I believe it offers very strong protection to employees in both the public and private sector. Some trade unions have commented that the legislation offers “some of the best workplace whistleblower protections on the planet”. I think that sums it up. What do you think the ramifications are for the future of litigation funding as a result of the recent high court case of Persona Digital Telephone Limited v the Minister for Public Enterprise. Do you think public policy consideration supports a move away from the traditional position? Absolutely, I think we should move away from the traditional position. I would have no issue with litigation funding. It would allow people without the resources to have full access to justice. At the moment, in order for an average person to access justice they are required to take a huge gamble that they will win the case. If they lose, the potential ramifications of a costs order against them are enormous. They also need to find a solicitor and counsel who will also take a risk that they will not be paid in full (or at all) for their hard work. On the other side, you may have an insurance company, a large multinational or indeed the State, with very deep pockets. Litigation funding would redress the balance to some degree. So what is next for Gerard Rudden? After running such a high profile and demanding case, will you take some downtime? There will be no downtime for the moment unfortunately. The commercial litigation department of our firm is incredibly busy at present. There seems to be no let up! In addition, I have just had another case heard by the grand chamber of the CJEU in April. The Advocate General will be releasing his opinion in that case in June. I have also recently been instructed in another matter that has been referred to the CJEU. Perhaps a spot on the red carpet of the new Oliver Stone “Snowden” movie awaits? I’ll await the call! P
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23/06/2016 3:49 p.m.
Kiara Daly is an in-house legal counsel and legal recruitment consultant with Morgan McKinley. She is also a member of the DSBA Younger Members’ Committee
The Advantages of Being an In-house Solicitor Kiara Daly sets out some merits to working ‘in house’
do not think the advantages of practice and in-house are mutually exclusive; each route is different. People move in-house for a variety of reasons but these are my top four advantages:
Often as solicitors become more involved in their companies, the stakeholders might actually expect the solicitors to give their opinions on commercial matters in addition to legal matters
1. You have only one client. This is probably the biggest attraction to move in-house. You get to know your client inside out. You work closely with a number of stakeholders across the business and you have a thorough understanding of the business and its needs. This can prove very rewarding as the in-house solicitor can truly see (and foresee) the impact of their legal advice. 2. The role that you find yourself in allows you to adopt a different mindset when providing legal advice. The simple approach would be that the solicitor gives the client legal advice in order to equip the client to make informed commercial decisions. In-house solicitors tend to exercise more freedom to consider the commercial realities of a given issue. Often, as solicitors become more involved in their companies, the stakeholders might actually expect the solicitors to give their opinions on commercial matters in addition to legal matters. Most of my candidates joke about scenarios where they have carefully set out detailed legal advice to their company on the risks of a certain proposed transaction only to be met with the question “so can we do it?” 3. You learn a huge amount when you work alongside people from different professions and backgrounds. Coming from practice where one is surrounded by lawyers, it is extremely refreshing to work through a scenario alongside an accountant, an engineer or a sales person. You will learn that lawyers do not in fact know everything (!) and you will pick up new approaches to
problems that you might not have come across before. 4. You improve your relationship building skills. As mentioned above and in my previous blog, working in practice brings the advantage of being surrounded by like-minded people. There is an underlying collegial respect for each other. When you move in-house, many people do not care that you are a solicitor (this can be a good thing for us) and in fact in some companies the legal team is avoided at all costs! As an in-house solicitor you must learn how to communicate effectively with your colleagues. You will find yourself communicating with the sales person in one way and the tax director in another way. You will need to earn each of their respect and in turn they will earn yours. It is the legal team’s job to make the company understand its value and accomplishing this is one of the most rewarding aspects of being an in-house lawyer. You might wonder why I haven’t yet mentioned working hours. People are quick to assume that in-house means less hours. Yes, when you compare the hours required in some teams in top tier firms with in-house roles, the in-house hours will be better. However, you can find great hours in certain areas of practice and also in smaller law firms. Inversely a number of senior in-house candidates have told me that they actually work more hours in-house than they did in practice. Working hours are understandably a big factor for many people however, unfortunately it is not correct to say that an in-house move will result in better hours. As with practice, the company and the role will dictate your hours. Above are the top four advantages that I see with inhouse roles. Undoubtedly people will see many alternative advantages of being in-house because when it comes to your career, advantages are subjective. P
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A Solicitor’s Costs Victory Keith Walsh examines a significant recent judgement of Ms Justice Irvine in the Court of Appeal delivered on 14th March 2016 entitled Spillane v Dorgan  IECA 84 (available on the courts’ website) which corrected a common error made by practitioners and judges of the high court in relation to what constitutes a bill of costs for the purposes of sections 2 or 6 Solicitor (Ireland) Act 1849
he importance of what precisely constitutes a bill of costs is that the 12-month time limit within which a client must apply to tax the costs of a solicitor only runs from the date a bill of costs is delivered. The incorrect practice followed until Irvine J’s decision was that a bill of costs was only viewed as a bill of costs if it complied with Order 99 r. 29(5) of the Rules of the Superior Courts which refers to a seven-column bill of costs and which is the type of bill drawn up almost exclusively by legal costs accountants. Irvine J held that a valid bill of costs for the purposes of the 1849 Act, and to start the 12 month clock running within which the bill can be sent to taxation – is a bill of costs which complies with the definition of bill of costs in section 2 and (the obligations set out in) section 68(6) of the Solicitors (Amendment) Act 1994 – and does not have to be a legal cost accountant’s type bill as set out in Order 99 of the Rules of the Superior Courts.
Background to the Case The solicitor was retained by the client in two sets of family law proceedings at the circuit court in 2002. The solicitor furnished her client with section 68 letters on 18th July, 2005 and 29th May 2007 in which she estimated her solicitor’s fees would be approximately €45,000 plus VAT (and outlay) excluding conveyancing, witnesses’ expenses and barristers’ fees. The family law cases were settled in May 2007 and no order for costs was made. The settlement agreement provided for the transfer of substantial assets to the client – the family home was to be transferred into her sole name, she was to be paid the sum of €1m within five years and to receive substantial monthly maintenance payments until payment of the capital sum. A further payment of €125,000 was to be made to the client within three months.
On 12th November, 2007, the solicitor furnished the client with a total bill of €120,855 comprising her own fee of €55,000 plus VAT, €11,550 which was described as “all work done in this connection to include client appointments, phone calls, all correspondence, consultations with counsel and attendances at court”. A list of 15 items of outlay and an itemised list of fees paid to senior counsel, junior counsel, auctioneers, forensic accountants etc. was included in the bill. The solicitor explained in her covering letter that she had deducted the fees from the sum of €125,000 received from the other solicitor on foot of the settlement and held in her client account. A cheque in the sum of €4,145.60 was enclosed “to conclude”. The client retained another solicitor to act on her behalf in relation to another matter and this other solicitor took up her documents and files in 2009. The client raised no query or objection to the bill of costs and she did not object to the fact that the solicitor had paid herself her fees from the funds otherwise payable to her by her husband under the settlement agreement. Following correspondence in 2012 where the client called upon the solicitor to submit her bill of costs for taxation and where the solicitor refused stating that the time within which the client could tax the costs had expired, the client then issued high court proceedings claiming that the invoice initially furnished was not a valid bill of costs. The relief claimed by her was an order “requiring the defendant to submit to taxation a solicitor and client bill of costs within the meaning of ss. 2 or 6 Solicitor (Ireland) Act 1849”. In response, the solicitor by notice of motion returnable before the court in May 2014, sought an order dismissing the client’s claim on the grounds that it was frivolous and vexatious, or alternatively on
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Summer 2016 dsba.ie Keith Walsh is the principal of Keith Walsh Solicitors, Crumlin. He is a former president of the DSBA and former editor of the Parchment
the basis that it was bound to fail. The solicitor set out the facts on affidavit. The high court judge in July 2014 refused the solicitor’s application to have the proceedings dismissed and required the solicitor to submit her bill of costs to taxation and the matter was then appealed by the solicitor to the court of appeal.
Relevant Factors in Determining what is a Valid Bill of Costs as Highlighted by Irvine J As no provision for costs was made by the court or by way of settlement in the family law case which gave rise to the bill of costs, the costs were solicitor and client costs only. The bill of costs in question was for work done which was “contentious business” as defined in section 2 of the of the 1994 Act: “Business done by a solicitor in or for the purposes of or in contemplation of proceedings before a court or tribunal or before an arbitrator appointed under the Arbitration Acts, 1954 and 1980.” Bill of costs is defined in section 2 of the 1994 Act as including: “any statement of account sent, or demand made, by a solicitor to a client for fees, charges, outlays, disbursements or expenses”. Due to the fact that the proceedings of the subject matter of this case were contentious, the following
additional obligations were placed on the legal practitioner pursuant to section 68(6) of the 1994 Act: 68(6)
Notwithstanding any other legal provision to that effect a solicitor shall show on a bill of costs to be furnished to the client, as soon as practicable after the conclusion of any contentious business carried out by him on behalf of that client: (a) summary of the legal services provided to the client in connection with such contentious business, (b) the total amount of damages or monies recovered by the client arising out of such contentious business, and (c) details of all or any part of the charges which have been recovered by that solicitor on behalf of the client from any other party or parties (or any insurers of such party or parties), and that bill of costs shall show separately the amounts in respect of fees, outlays, disbursements and expenses incurred or arising in connection with the provision of such legal services.
This is the bill of costs which solicitors furnish to their clients following a contentious matter and it is now clear that the 12-month time period runs from delivery of the normal solicitor’s bill of costs, provided
The importance of what precisely constitutes a bill of costs is that the 12-month time limit within which a client must apply to tax the costs of a solicitor only runs from the date a bill of costs is delivered the Parchment 33
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Irvine J points out that any judge considering invoking the high court’s inherent jurisdiction would firstly have to have regard to the extent of any delay and the reasons therefore having regard to the fact that the court’s inherent jurisdiction runs in parallel to the statutory jurisdiction it complies with section 2 and section 68(6) of the 1994 Act, rather than the bill prepared by the legal cost accountant which may never be prepared or may only be prepared in the event of a dispute.
What do Section 2 and 6 of the Solicitor (Ireland) Act 1849 say and can a client tax a bill of costs after 12 months from the delivery of a valid bill of costs? In her judgement Irvine J refers to the summary of McCarthy J in State (Gallagher Shatter & Co) v DeValera  ILRM 3 where he states: “The combined effect of Sections 2 and 6 in respect of a bill of costs for solicitor and client charges duly delivered, would appear to be that: (1) the solicitor cannot lawfully sue for one month after delivery, (2) the client has a period of 12 months within which to demand and obtain taxation, (3) after the expiry of 12 months or after payment of the amount of the bill, then the court may, if the special circumstances of the case appear to require the same, refer the bill to taxation, provided the application to the court is made within 12 calendar months after payment, (4) after the expiry of the latter period, there is no statutory power to refer for taxation. Irvine J gives examples of what she considers could amount to “special circumstances” for the purposes of s. 6: • payment of a bill of costs without the consent of the client (see RE McLaughlin  42 ILTR 153), in circumstances where the bill was paid by reason of undue pressure on the client or where the client on payment, expressly reserves the right to have the bill taxed at a later date (see RE Walker v Carey and Others 65 LT 68). Irvine J points out that any judge considering invoking the high court’s inherent jurisdiction would firstly have to have regard to the extent of any delay and the reasons therefore having regard to the fact that the court’s inherent jurisdiction runs in parallel to the statutory jurisdiction. For my part the following matters would sound against the exercise by the court of its inherent jurisdiction on the facts of the present case namely: (i) The fee note was not disputed when it was delivered.
(ii) Ms Spillane made no complaint about the fact that Ms Dorgan deducted her fees from the sum of €125,000 which would otherwise have been payable to her on foot of a settlement. (iii) It was not until 2nd July 2012, almost five years after the delivery of the bill that Ms Spillane first complained about the size of that bill. (iv) Ms Spillane was under no disability during any of the aforementioned period of delay. (v) Ms Spillane’s entire file had been transferred by Ms Dorgan to a new solicitor in 2009 thus affording her every opportunity to raise a query regarding the size of the bill, but none such was made. (vi) There is a bald assertion in August 2012 that had the fee note been referred to taxation the same would entitle her to a rebate of €30,000. The same is unsupported by any evidence from a solicitor or a costs accountant, a somewhat surprising omission in light of the fact that she was in possession of her full file since 2009. (vii) The solicitor and client bill when considered separately from fees, outlays, disbursements and expenses is not blatantly or obviously excessive having regard to the s. 68 letters notified to Ms Spillane at the commencement of the solicitor client relationship.’
Interaction between the six-year limitation period in contract and the 12-month period within which to tax a bill of costs Counsel for the solicitor appellant submitted that regardless of the 12-month time limit provided for in s. 2 of the 1849 Act, Ms Spillane’s claim must be statute barred by virtue of the fact that her action was a claim for breach of contract arising out of the solicitor and client relationship to which a six-year statutory period applies. Irvine J did not accept this submission as she held that the Act of 1849 contained its own time limit within which a client may challenge the validity of a bill of costs. Irvine J concluded that it must be inferred from the statutory provision that the client’s entitlement to engage s. 2 of the 1849 Act is lost once the time provided [12 months] expires.
Irvine J on behalf of the court of appeal found in favour of the solicitor appellant and held: •
the solicitor and client bill of costs furnished by Ms Dorgan to Ms Spillane on 12th November 2007, was a bill of costs in accordance with s. 68(6) of the Solicitors (Amendment) Act 1994 and was thus a valid bill of costs for the purposes of triggering the time limits attaching to s. 2 of the 1849 Act. the trial judge erred in concluding that Ms Spillane’s claim to relief under section 2 of the 1849 Act was not time barred. the facts of the present case did not support the exercise by the court of its inherent jurisdiction to refer that bill of costs to taxation. P
Thanks to George Gill for alerting me to this case and to the solicitor Ms Dorgan for ensuring the law was corrected by bringing this case all the way to the court of appeal
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Smart Phones When are they not so smart? Most of us have now adopted the smartphone lifestyle, whereby the phone has become an integral part of our lives. Greg Ryan gives some salutary advice on the use of your smartphone
ost people cannot help but reach for the phone in their pocket when they get a text or an email, as epitomised by the nickname for early Blackberry users’ devices as “crackberrys”. While smartphones may have made our lives easier in some ways and connected us more than ever before, there are risks involved in being glued to the screen. Being a slave to any electronic device can result in mild anti-social behaviour as well as increasing the risks of certain health conditions, which is ironic given the number of apps out there to help us become healthier. A number of the problems already identified are as follows: Text Neck – this is a relatively new finding, but it refers to the strain that users have put on their spine when tilting the head constantly downwards to look at the newest online message. According to medical journals, your head weighs approximately five kilos in an upright position, but that number jumps to 25 kilos when your neck is at a 60-degree angle. That is a lot of weight for your neck and spine to bear, which you will not feel while doing it, but over time causes degeneration and may necessitate surgery.
Decreased Sleep Quality – Time Magazine reports that smartphones cause something akin to “a hangover” because we cannot detach from them to allow time to let our bodies relax and recharge. Workaholics (you) find it especially hard to put down your phones in case you miss client emails or messages. On a more physical level, the article also notes that the light emitted from the smartphone can trick our bodies into releasing less melatonin (our natural sleep hormone), which leads to making it harder to fall asleep, and even when you do, it will be less restful sleep. One recent Norwegian study of 10,000 teenagers, showed that the longer they spent looking at the screen before bedtime, the worst quality sleep they were likely to have. Eye Strain – according to lifehacker.com, staring at your smartphone will not cause permanent eye
damage, but it will make things a lot less comfortable. In particular, dry eyes and blurred vision are a sign of such eye strain. They recommend using the “20-20-20 rule” which means that for every 20 minutes you spend looking at the screen, you should take a 20-second time out and stare at something at least 20 feet away. New research also shows that the blue light emitted by smartphones has a toxic effect on the back of the eyes, leading to macular degeneration and even blindness. Clumsiness – everyone will or at least should be aware that it is now illegal to text and drive. It is not just looking at the phone instead of the road that causes danger according to the Telegraph, people listening to someone talk on their mobile phone have 37% less brain activity. It doesn’t just affect drivers, it can harm even if you are walking. Those who are texting on the phone are four times more likely to ignore traffic light signals and also cause accidents like walking into poles. If you are not convinced, Google “texting accidents while walking” to see some videos of some very supposedly intelligent people walking and texting. New Jersey has now introduced a bill called the “Distracted Walking Bill” which will make it illegal to walk while texting, and will ban pedestrians on public roads from using devices unless they are hands free, with fines of up to $50 or 15 days in prison (the same penalty as jay walking). There is also a pending bill in Hawaii which will look to fine smartphone users $250 for using their devices while crossing the street. According to research published in the Accident Analysis and Prevention Journal, more than 1,500 Americans are treated in hospital A&E departments every year due to injuries sustained while using a mobile phone while walking. Text Claw – typing too much on a PC keyboard will cause permanent damage to your hands and fingers, in particular carpal tunnel syndrome, a condition caused by compression of the nerves from over use of the fingers. There is now a specific condition being linked to smartphones called text claw. Using your thumbs to text puts excessive strain on your wrists and forearms, causing pain. According to research by O2 in 2013, two out of five British phone users have experienced
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Summer 2016 dsba.ie Greg Ryan is programmes director of the DSBA and he is chair of the Law Society Technology committee
pain or discomfort in their thumbs, while more than half complained of thumb fatigue after using their smartphones. Anxiety – instead of making us more connected, incessant smartphone communication makes the user feel more isolated. Young people who spend 11 hours looking at their screens every day, expect constant updates from their friends, and a lull in messages leads to anxiety. Dr Richard Graham, a psychologist specialising in technology addiction at Nightingale Hospital says “there is the terrible feeling that the person is ignoring you. Young people have to manage feeling excluded by people that are very important to them”. Obesity – A consultant orthopaedic surgeon, Jonathan Deering, a spokesman for the Royal College of Surgeons in Edinburgh, says that the technology revolution has led to reduced physical activity and obesity which is the fourth cause of death worldwide. “If somebody is on the floor above you at work, rather than going to see them, you will send an email, and you would phone up a friend rather than travelling to meet them. Inactivity leads to obesity, and it means the risk of cardiovascular disease is greatly increased”. Depression – child psychotherapist, Julie Lynn Evans reports that she dealt with one or two attempted suicides a year in the 1990s, but now this is up to four a month. She blames smartphones for this increase, saying that it allows teenagers to carry a world of cyber bullying with them wherever they go. Attention Span – finally, you are much less likely to finish reading this article if you are on a mobile
when you can click to see a Youtube video or your friend’s photos. The researchers demonstrating the smartphones now greatly reduce our attention span, and make us far less effective at completing tasks, especially difficult and detailed tasks. Even the mere presence of a smartphone is distracting enough to ruin our mental concentration. Researchers at the University of Waterloo in Canada report that using your phone instead of your brain to record or deduce information will make you mentally lazy. The study of over 600 people found a significant co-relation between less time spent on the phone and stronger cognitive skills and powers of analysis. It can Ruin your Sex Life – 40% of us have delayed sex because we are too busy looking at our smartphones, according to new research from Durham University. What is more, a third of those interviewed admitted that they had actually rushed through or even stopped in their tracks in order to respond to messages. The phone comes with potentially serious costs to relationships, causing frustration and tension at very least. It will Jeopardise Friendships – you go on holiday to relax and get away from it all, correct? Yet one third of us spend more time on social media than we do talking to our travel companions, according to a new survey by Top Deck Travel. Not only will you annoy people surrounding you, but you will annoy those back home. One in seven people feel jealous when viewing a friend’s holiday phots on Facebook, Twitter and Instagram, according to a survey from British Airways. A quarter of us feel upset, annoyed or confused if we don’t get enough likes, or favourites, or comments on our uploads. Maybe sending a postcard wasn’t such a bad idea after all. P
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Changes to Landlord and Tenant Law The Residential Tenancies (Amendment) Act 2015 was enacted on 4th December 2015 (“the 2015 Act”). Marissa O’Keeffe sets out the key changes and reforms which should be carefully noted by practitioners in this area
he provisions under the 2015 Act were commenced on a phased basis with a number of provisions yet to be commenced. The 2015 Act amends the Residential Tenancies Acts 2004 and 2009, therefore the legislation governing tenancies in Ireland that are within the scope of the Residential Tenancies Board (RTB) will now be collectively known as the Residential Tenancies Acts 2005 to 2015 (“the Acts”). The 2015 Act introduces a number of extensive reforms. The impetus for the enactment of the 2015 Act was driven by a number of factors, in particular, the growing demand for rent certainty provisions. This article will focus on some of the key changes brought about by the 2015 Act and will not deal with all of the amending provisions of the 2015 Act. Practitioners are advised to consult the legislation in that regard.
Rent Reviews On 4th December 2015 the sections dealing with rent reviews were commenced, namely, sections 25, 26(1)(a) (i), and 26(2) of the 2015 Act. The duration between rent reviews was extended from 12 months to 24 months. However, section 25 contains a sunset clause which specifies that the extended period of 24 months will automatically expire on 3rd December 2019. Thus the duration between rent reviews will revert back to 12 months after 3rd December 2019. The notification period that must accompany a rent review has been increased from 28 days to 90 days. Practitioners should note the distinction between the date a notice for rent review is served and the date that it’s to take effect when considering the 24-month period. For example, if a landlord reviews the rent on
1st January 2016 by serving a 90-day notice indicating the review of rent is to take effect from 1st April 2016, a subsequent notice for the review of rent cannot issue to a tenant until 1st January 2018 and must also provide 90 days notice prior to taking effect (i.e. 1st April 2018). Most notable amongst the rent certainty provisions commenced on 4th December 2015 is the fact that the amendments contained in section 25 of the 2015 Act have retrospective effect. Therefore, if a landlord reviewed a rent in August 2015 the next review may not occur until August 2017, unless of course, a valid notice reviewing the rent was served before section 25 was commenced on 4th December 2015, in which case the provisions under section 20 of the 2004 Act apply to that rent review. If no rent review has occurred, the rent set at the commencement of the tenancy is considered the first rent review for the purposes of the 24-month period. It is vital that any purported review of rent must be in line with the market rate and not in excess of the market rate. According to section 24 of the 2004 Act, market rate “means the rent which a willing tenant not already in occupation would give and a willing landlord would take for the dwelling, in each case on the basis of vacant possession being given, and having regard to” the other terms of the tenancy and letting values of comparable properties. The remaining provisions of section 26 of the 2015 Act were commenced on 9th May 2016. A notice served by a landlord purporting to review a rent must now contain certain information in order to comply with the Act. Practitioners’ attention is drawn to the fact that the RTB has created a sample notice of
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Summer 2016 dsba.ie Marissa Oâ€™Keeffe is an associate solicitor with St John Solicitors, a member of the panel of mediators and adjudicators appointed by the RTB and a member of the Property committee of the DSBA
new rent for guidance purposes. See http://www.prtb. ie/dispute-resolution/dispute-resolution/the-threestages-of-a-tenancy/rent-reviews. A notice of new rent must state the amount of the new rent and the date from which it is to have effect. Like a notice of termination of a tenancy, it must too include a statement that a dispute in relation to the purported review of rent must be referred to the RTB on the expiry of 28 days from the receipt by the tenant of the notice or before the date the new rent is to take effect, whichever is later. There is no time limit for the referral of a dispute by a tenant to the RTB in circumstances where an invalid notice is served. A notice of new rent must include a statement by the landlord that it is his or her opinion that the new rent is not greater than the market rate having regard to the other terms of the tenancy and letting values of comparable dwellings. A landlord must also specify the rent amount for three comparable dwellings in the notice. A landlord or their authorised agent must sign the notice and the date the notice is signed must also be stipulated.
Extension of Notice Periods Section 31 of the 2015 Act relating to notice periods was also commenced on 4th December 2015. The notice periods that both a tenant and landlord must furnish to each other on the terminating of a tenancy under the Acts has been expanded (see the table of notice periods laid down in Section 66 of the
2004 Act and the table of notice periods as amended by section 31 of the 2015 Act). For example, a landlord terminating the tenancy of a tenant that has lasted eight years or more must now provide 224 days notice to a tenant, and a tenant terminating a tenancy of the same duration must provide 112 days notice to a landlord. It is important to bear in mind that the first day of a notice period commences on the day after the notice is served. Thus, if notice is served on the 2nd day of May, the first day of the notice period starts to run on the 3rd day of May (Section 61 of the 2004 Act).
Mediation Since 8th January 2016, all applications for dispute resolution that proceed by mediation are free of charge. The RTB offers a telephone mediation service whereby a trained mediator appointed by the RTB contacts the parties to a dispute by telephone and mediates or assists the parties in reaching an agreement in relation to their dispute without the parties having to attend a hearing or without having to meet face-to-face. Mediation offers parties the opportunity to have a speedy and convenient resolution of their dispute with parties being able to opt to withdraw their dispute if it is resolved during the mediation process, or agreeing to enter a legally binding agreement, where appropriate.
Terminating a Tenancy Practitioners will be aware that in order to validly terminate a tenancy under the Acts, a notice which complies with the requirements laid down in section
Landlord & Tenant
A notice of new rent must include a statement by the landlord that it is his or her opinion that the new rent is not greater than the market rate having regard to the other terms of the tenancy and letting values of comparable
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66 of the 2004 Act must be served. To recap, the requirements of section 66 of the 2004 Act are as follows: a notice must be in writing and be signed by a landlord or his or her authorised agent or, a tenant (where appropriate); a notice must specify the date of service; a notice must provide the reason for termination (where the tenancy has lasted for more than six months or is a fixed-term tenancy); it must specify the termination date; a notice must include a statement that the tenant has the whole of the 24 hours of the termination date to vacate the dwelling and give up possession and a statement that any issue as to the validity of the notice or the right of the landlord to serve it must be referred by the tenant to the RTB within 28 days from the receipt of the notice. In addition to the above requirements, since 9th May 2016, further requirements have been introduced by sections 28 and 29 of the 2015 Act. Sections 28 and 29 amend the provisions of sections 34 and 35 (permitted reasons for terminating a part 4 tenancy) of the 2004 Act. Essentially, in certain circumstances, a notice of termination must now also be accompanied by a statement or statutory declaration. For example, where a landlord intends to terminate a tenancy citing the reason that he or she intends to sell a dwelling within three months of the termination of the tenancy, the notice must specify the three-month period and it must be accompanied by a statutory declaration executed by the landlord confirming this intention to sell within three months. In addition, where a landlord intends to terminate a tenancy citing the reason that the dwelling is needed for his or her own use or use by a family member, the notice must be accompanied by a statutory declaration executed by the landlord confirming the identity of the intended occupant and the relationship to the landlord (where applicable). The statutory declaration must also confirm that the landlord is obliged to offer the tenant a tenancy if the ‘contact details’ required set out in section 35 of the 2004 Act (as amended) are provided by the tenant and the dwelling is vacated within a period of six months from the termination date. Practitioners’ attention is drawn to the fact that the RTB haa created a number of sample notices of termination as well as the accompanying statements or statutory declarations (where appropriate) for guidance purposes. See http://prtb.ie/dispute-resolution/disputeresolution/sample-notices-of-termination. Whilst the samples produced by the RTB will be a useful resource for practitioners it is, nevertheless, imperative that the relevant provisions of the legislation are consulted in order to ensure that a notice as well as the accompanying statement or statutory declaration is properly drafted. The importance of a properly drafted notice of termination is highlighted below.
Terminating a Tenancy for Non-Payment of Rent The stages involved in the termination of a tenancy for rent arrears have been changed from a three-step process to a two-step process. Previously, prior to serving a 14-day warning letter, a landlord had to either provide verbal or written notice to a tenant giving them
a reasonable period of time within which to remedy their breach of obligations in failing to pay the rent as it fell due. Now a notice informing the tenant that an amount of rent is due, and giving the tenant 14 days to pay the said rent arrears can be served as soon as the tenancy falls into arrears. If a tenant fails to discharge the rent due within 14 days of having received the notice, the landlord may proceed with serving a notice of termination of the tenancy on the tenant, providing the tenant with a further 28 days’ notice before the tenancy will terminate.
Introduction of a Slip Rule in relation to a Notice of Termination On 8th January 2016, section 30 of the 2015 Act was commenced and it introduces for the first time a slip or omission rule in relation to a notice of termination. An adjudicator or the tribunal may make a determination that a slip or omission, which is contained in a notice of termination or occurred during the service of a notice of termination, will not of itself invalidate the notice provided the adjudicator or the tribunal is satisfied that the slip or omission concerned does not prejudice in a material respect the notice of termination and the notice of termination otherwise complies with the provisions of the Acts. It should be noted that the slip rule was introduced with effect from 8th January 2016, therefore, it can only be considered in the context of notices served after that date. It remains to be seen how the slip rule will be interpreted. However, practitioners should consider the recent high court decision in Louis Hennessy v Private Residential Tenancies Board & John McStay, receiver over certain assets of Durkan Homes (in receivership) [2015 No. 229 MCA] (“the Hennessy decision”) when considering the importance of a properly drafted notice.
The Importance of a Properly Drafted Notice of Termination The recent high court judgment in the Hennessy decision emphasises the importance of a properly drafted notice of termination when seeking to terminate a part 4 tenancy because the landlord intends to sell the dwelling. The case was brought before an adjudicator in the first instance, and by way of an appeal, before a tenancy tribunal. After the tenancy tribunal issued its determination that the notice dated 11th June 2014 was valid, the tenant appealed to the high court on a point of law. The tenant’s appeal in the high court was successful and Judge Baker held that the notice terminating the tenancy was not valid. Judge Baker stated that because the notice failed to specifically state the receiver intended to conclude a contract to sell the property within three months of termination, it did not meet the requirements of section 34 the Residential Tenancies Act 2004. Instead, the notice stated only “I require vacant possession of the above property as I intend to sell the property”. Judge Baker stated “the notice does not require to be expressed in the precise form of the statutory provisions, but the information
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Landlord & Tenant
cited must sufficiently identify that the intention is to conclude a contract for sale within three months”. It should also be borne in mind that the notice of termination in this case pre-dated the introduction of the slip rule provided for in section 30 of the 2015 Act and the amendments contained in sections 28 and 29 of the 2015 Act. Nevertheless, this case demonstrates the difficulties a landlord may encounter in obtaining vacant possession before the closing of a sale of a dwelling in circumstances where a notice of termination has not been drafted in accordance with the Acts and where the slip rule may not be invoked. Therefore, it is vital that the relevant provisions of the legislation are consulted prior to the drafting of a notice of termination.
Anti-Social Behaviour Section 36 of the 2015 Act amends section 77 of the 2004 Act insofar as the procedures for making a complaint in relation to anti-social behaviour. A third party affected by issues of anti-social behaviour as defined in the Acts may now request either: an owner management company; a body corporate; or a body of persons such as a residents’ association or a neighbourhood watch group, to communicate with the landlord or former landlord on their behalf or submit an application for dispute resolution to the RTB on their behalf.
Re-naming of PRTB to RTB and inclusion of Approved Housing Bodies Since 7th April 2016, the PRTB is now called the RTB, or Residential Tenancies Board. It is no longer known as the Private Residential Tenancies Board because approved housing bodies are now within the remit of the RTB. Approved housing bodies (AHBs) are not-forprofit housing providers, often referred to as housing associations, who provide accommodation for those in need. This new change will ensure that both tenants and landlords of these properties will be afforded protection under the Acts and will be able to access the disputes resolution services of the RTB. AHBs must obtain “approved status” from the Department of Environment, Community and Local Government.
According to the RTB there are over 500 AHBs in Ireland with a stock size of over 30,000 units. AHBs are required to register their tenancies with the RTB within 12 months of 7th April 2016. There are a number of differences in the rights afforded to a tenant of an AHB compared with those of a private rented dwelling. For example, an AHB tenant is not permitted to assign or sublet its tenancy; There are different rules regarding rent reviews for AHBs which do not have to supply white goods such as washing machines etc. that a landlord of a private rented dwelling is obliged to produce in accordance with the Housing (Standards for Rented Houses) Regulations 2008 and the Housing (Standards for Rented Houses) (Amendment) Regulations 2009. The Department of Environment has a published a Guide to Minimum Standards in Rented Accommodation (June 2013) which can be printed from the publications section of its website, www.environ.ie.
Conclusion There are still a number of provisions which have not yet been commenced under the 2015 Act, in particular, provisions affecting changes to the treatment of deposits and the introduction of a deposit protection scheme. The deposit protection scheme will require deposits to be lodged with the RTB instead of being retained by a landlord. Any interest received from the holding of the deposits will be retained by the RTB for its use in respect of its performance of its functions under the Acts. This article focused on some of the practical changes brought about by the 2015 Act from a practitioner’s perspective and does not cover a number of provisions such as the administrative or procedural changes affecting the dispute resolution processes brought about by the 2015 Act. Practitioners may be consulted by clients either seeking to have a properly drafted notice of termination that complies with the requirements of the Acts and/or a statement or statutory declaration as required by sections 28 and 29 of the 2015 Act (amending sections 34 and 35 of the 2004 Act). As stated above, the RTB should be a useful tool for practitioners in that regard. P
There are still a number of provisions which have not yet been commenced under the 2015 Act, in particular, provisions affecting changes to the treatment of deposits and the introduction of a deposit protection scheme
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Tom Oâ€™Neill is the founder and CEO of Brandon Global IT. Brandon Global IT recently announced a strategic partnership with the Institute of Legal Research and Standards to offer its IT security audit to law firms in Ireland. Contact Julie Brennan at email@example.com for more information
Cyber Security and the Legal Sector
Cybercrime has become a real problem for businesses with many unsure just how resilient their systems are to malicious attacks. Tom Oâ€™Neill offers advice on how to combat this major issue
aw firms are at particular risk due to the sensitive nature of their businesses. Of course, data protection has long been a priority in the legal sector and if anything, it needs to receive more attention as technology progresses. As more and more business activities are conducted through information and communication technology (ICT), law firms have not necessarily kept pace with the security risks involved. It is crucial that the necessary protections are in place to instill trust in clients. Firms that find themselves on the wrong end of a data security breach may do irreparable damage to their image in the marketplace.
prominent security issues are. For example, I regularly encounter businesses that still utilise Windows 2003 servers even though Microsoft ended support for this technology a year ago. This means that there are no more security updates available, as more sophisticated and aggressive malware (computer viruses) emerge. This can pose a severe threat to the business, and often the directors and managers have no idea about the risk. Part of the blame can be attributed to the myriad of IT services companies out there. While on the surface many of them provide good reliable support to users, few have the necessary expertise to properly risk assess the full ICT environment.
I have worked with many firms in the legal and financial sectors in Ireland to help them to tighten up security. It always surprises me just how varied the
Irish companies are being increasingly targeted by international cyber criminals with 44% of companies reporting that they have been the victims of attacks
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Summer 2016 dsba.ie
compared to 32% globally. The Garda Bureau of Fraud Investigation has warned that small and medium businesses are at particular risk. Recently, Irish firms have become the target of a very specific virus called Ransomware. As the name would suggest, this type of virus prevents or limits users from accessing their own system. It forces its victims to pay the ransom through certain online payment methods in order to grant access to their systems, or to get their data back. In the legal sector where data protection is paramount, Ransomware can be catastrophic. However, it’s not all doom and gloom. Up to 49% of businesses surveyed claimed to carry out regular cyber security assessments in their organisations, and this is growing. The indication is that businesses recognise the importance of cybersecurity and are responding to the challenges it poses. Having said that progress is slow, especially when compared to the increasing rate of cybercrime incidents. Organisations that don’t take the necessary steps to protect themselves, their data and their clients are taking huge risks as they come into the crosshairs of unscrupulous hackers.
How to Ensure Your Business is Protected There are a number of steps you can take to help protect your business. Firstly, consult with your IT
provider to ensure that they are doing all they can to keep your systems secure. If there is an indication that they are not up to speed, it may be worth looking for an alternative supplier. A comprehensive review of ICT security in your organisation can give you assurance that you are protected against the most notorious threats. Usually this review will end with a summary of all the risks identified in order of priority, as well as a number of recommendations that should improve security. This is a useful roadmap that gives you the opportunity to make immediate positive change in your business. You can then benchmark how much progress was made by conducting a second review in 12 months time. As well as this, it is advisable to educate all staff about the major risks and threats, and what to do if they come across one. If one of your employees downloads an attachment with malicious code, there is no guarantee that even the most aggressive antivirus software will be able to protect your IT. Indeed, social engineering is one of the most common techniques that hackers use to get into secure systems. Finally, it is a good idea to prepare for the worst and put a robust backup and disaster recovery plan in place. This means that no matter what happens, the management team in your company know exactly how to react, ensuring the optimum response.
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Supreme Court CPO Judgement The recent Supreme Court decision of Thomas Reid v the Industrial Development Agency Ireland and Attorney General dealt a serious blow to the IDA in terms of its CPO powers. Catherine Young reports on the judgement of Mr Justice McKechnie, dated 5th November 2015
his case called into question the use by the Industrial Development Authority (the IDA) of its statutory powers to compulsorily acquire land. These powers are contained in section 16 of the Industrial Development Act, 1986 (the “1986 Act”). The high court rejected all claims advanced by Mr Reid and the case was appealed to the Supreme Court where it was held that the IDA does not have the power to compulsorily acquire lands that are not required for immediate use.
Background Thomas Reid owns 72 acres of farm land at Blakestown, Maynooth, Co Kildare which are located near to the Intel site (the “Reid lands”). Neither the house nor the lands are located within any area identified for development in either the county plan or the relevant local area plans. In December 2011 the IDA made known its interest in acquiring the Reid lands. They wrote to Mr Reid and his mother (who had a life interest in the farm) and expressed the IDA’s “genuine interest” in acquiring the land. Two face-to-face meetings were held during which Mr Reid declined to sell his lands. A further letter was sent to him which stated “…it is IDA Ireland’s duty to progress this matter via all alternate means and if necessary the compulsory acquisition of the lands”. On 21st February 2012 the IDA wrote a further letter to Mrs Reid informing her that the lands had been “identified as strategically important for and in connection with industrial development”. The IDA stated its preference would be to acquire the lands by agreement but as the Reids did not want to sell, they would have to consider the option to compulsorily acquire them. On 7th March 2012 the IDA decided to commence the compulsory purchase of the Reid lands. In April 2012 Mr Conleth Bradley, SC, was engaged to act as an independent adjudicator. A hearing was conducted in July 2012 and Mr Bradley submitted his report to the IDA in October 2012. On 14th November 2012 the IDA at its board meeting decided to compulsorily acquire the Reid lands.
Grounds of Appeal Mr Reid had challenged the validity of the IDA to invoke its powers under the 1986 Act on several
grounds all of which were rejected by the High Court. In his appeal to the Supreme Court Mr Reid argued that the high court did not properly analyse the powers conferred by section 16 of the 1986 Act. He submitted that it did not permit the acquisition of lands for “land bank” purposes, and that the compulsory purchase order as made was ultra vires the provisions of section 16. He also argued that the exercise by the IDA of the power conferred by section 16 is subject to the proviso (the “Proviso”) that the IDA may only compulsorily acquire land if it: 1. considers that industrial development will or is likely to occur; and 2. is satisfied that the industrial undertaking conforms or will conform to the criteria set out in sections 21(3) and (4) or section 25(2) of the 1986 Act (which relate to industrial incentives and an employment grant). As no industrial undertaking was identified, Mr Reid argued that it was impossible to satisfy the Proviso. Mr Reid also alleged bias in relation to the position of Mr Liam O’Mahony who was the chairman of the IDA but who was also a non-executive director of the PM Group. The PM Group was commissioned to assist the IDA in reviewing what land options were available to it. Mr Reid also challenged the high court decision on the grounds of an absence of a reasoned decision for the making of the CPO, the lack of fair procedures in the overall decision-making process and, that the trial judge failed to have proper regard for his constitutional rights, in particular Articles 40.3, 40.5 (property rights) and 43 (security of his dwelling). Mr Reid also argued that the decision was in contravention of the Convention for the Protection of Human Rights and Fundamental Freedoms and Articles 6 and 8 of the European Convention of Human Rights.
Judgement – McKechnie J The Ultra Vires point Section 16 of the 1986 Act gives the IDA the right to acquire land. The exercise of this right is subject to the terms of the Proviso. Compliance with both of the conditions of the Proviso is required for the valid exercise by the IDA of the power conferred by section 16.
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Summer 2016 dsba.ie Catherine Young is an associate solicitor at Mason Hayes and Curran
The issues arising were: 1. whether the IDA had the power to assemble a land bank otherwise than by agreement with the land owners; and 2. where the IDA has not identified the industrial user which will benefit from the land acquired, how can it be satisfied that the conditions for exercise of its compulsory powers have been met. 3. The IDA never denied the fact that, as of the date of making the CPO, it did not have a particular industrial undertaking in mind for the Reid lands. The court stated that the only reasonable conclusion that could be drawn from this is that the acquisition of the lands was for future use, so that if and when a particular undertaking wished to set up in industry then the lands would be immediately available. The court concluded that what the IDA was doing was acquiring a “land bank”. A comparison was made between section 16 of the 1986 Act and the compulsory powers contained in section 213(2)(a) of the Planning and Development Act 2000. Under this section compulsory powers are available where land is required, but only where the particular purpose for its acquisition is already known and disclosed by the local authority. Under section 213(3)(b) land cannot be compulsorily acquired for future use where the authority has not determined the manner in which or the purpose for which, the lands will be used. McKechnie J stated that in his view “section 16 of the 1986 Act does not confer any power on the IDA to acquire lands not required for immediate use but which might be utilised at some future time. For such to be the case there would have to be an express statutory provision to that effect”. In light of the constitutional protection given to property rights and his view of section 16, McKechnie J held that the making of the CPO in respect of the Reid lands was ultra vires section 16 of the 1986 Act. Section 16 Proviso Both the first and second requirements of the Proviso must be satisfied. The assessment of due compliance must be case specific and McKechnie J stated it was impossible on the construction of section 16 to come
to a conclusion that the criteria outlined in section 21 (3) and (4) of the Act would be met in circumstances where the identity of the undertaking is not known, and its capacity to meet such requirements has not and cannot be established. He was satisfied that it would be impossible without a particular undertaking having been identified, to come to a conclusion that the provisions of section 25(2) of the Act have been or can be met. He stated that he believed the preconditions as specified in section 16 of the 1986 Act for the exercise by the IDA of its compulsory powers had not been satisfied, and on that basis he would also set aside the CPO. Bias Argument This issue relates to the position of Mr Liam O’Mahony who at the time was the chairman of the IDA and a non-executive director of the PM Group. The argument here was that this connection was such that it breached the objective bias test and accordingly, the decisions in which Mr O’Mahony was involved should be set aside on these grounds. Mr O’Mahony participated in two key decisions: 1. The original decision to initiate the compulsory purchase; and 2. The ultimate decision in making the CPO. While the report completed by the PM Group was not the only report considered by the IDA, it was one of the few key reports upon which the decision to acquire the Reid lands was based. The CPO was set aside on these grounds also. The judge did not consider it necessary to consider the other grounds of appeal.
In light of the constitutional protection given to property rights and his view of section 16, McKechnie J held that the making of the CPO in respect of the Reid lands was ultra vires section 16 of the 1986 Act
Conclusion The IDA was the only body involved from start to finish in dealing with the compulsory acquisition of the Reid lands from an objecting land owner. This is in contrast to the area of planning where there is an external adjudicator in the form of an Bord Pleanála. Legislation may be required to bring the IDA compulsory purchase process more in line with those of other statutory bodies, perhaps with the involvement of an independent appeals body, such as an Bord Pleanála. P the Parchment 45
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AFTER THE RISING
Soldiers, Lawyers and Trials of the Irish Revolution by Seán Enright, Merrion Press, €19.99 The tumultuous events of Easter 1916 have been the subject of huge attention and analysis in this centenary year. Yet the sea-changing – and lesser examined – actions of this period were those succeeding the Rising, with the trials and executions of the protagonists and the protracted insurgency that followed, now known as the War of Independence. Following the executions of the 1916 leaders and with the huge groundswell of public opinion that followed, a new government policy of conciliation was attempted but quickly faltered. Rebel prisoners were released, the
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5th Edition, Deirdre Kennedy, BL and Elizabeth Maguire, BL, Bloomsbury Professional, 2016, €160 Family lawyers have been spoilt this month with the publication of Geoffrey Shannon’s book reviewed above and this updated version of an essential guide to family law legislation by well known family law barristers Deirdre Kennedy and Elizabeth Maguire. The fifth edition, like all the previous editions will quickly find its way into the
Great War reached its climax, Ireland was gripped by the conscription crisis and resentment intensified over exclusion from the Versailles Peace Conference. It was in this atmosphere that revolution took hold. Raids and reprisals became widespread, dozens of police barracks were raided and over 90 courthouses were burned down. But juries failed, or refused to convict prisoners in cases arising out of the insurgency, which in turn drove the authorities to use special juries, move trial venues, to rely on courts martial and use internment and banishment orders. Enright’s new book charts the breakdown of the justice system and how it was substantially replaced by courts martial including martial law courts in the south west of Ireland – as well as how the police and the army sought to use these instruments to suppress the Dáil loan, the Dáil courts and other institutions of the emerging state. After the Rising provides a vibrant account of Ireland’s slow descent into turmoil as the law unravelled and the country engaged in a new and shocking conflict. Seán Enright was called to the bar at Middle Temple in 1982 and at the Four Courts in 1993. He practised at the bar in London for many years and is now a circuit court judge in the UK. He is author of the Easter Rising 1916: The Trials. In this sequel, After the Rising: Soldiers, Lawyers and Trials of the Irish Revolution, Enright puts the great legal cases of the period into context with exacting clarity, including the trials of Casement, Markievicz, McSwiney, and the Bloody Sunday courts martial. He demonstrates how the justice system became a pivotal part in a policy of repression which, only after many years, would be unpicked and finally unravelled. The book is available in bookshops and from www.merrionpress.ie, €19.99.
briefcase of family lawyers within weeks of publication. The stand alone masterpiece contained in the new handbook is the complete updating of the Guardianship of Infants Act 1964 following the rewriting of this statute by piecemeal amendment in the Child and Family Relationships Act 2015. The authors have transposed the 2015 Act into the 1964 Act which makes it much easier for practitioners to identify the changes in the Act. It is worth the price of the book for this updated statute alone, but there is much more. An example of one of the many useful details flagged in the notes to the legislation are to be found after section 9 of the 1995 Act, which deals with property adjustment orders, the authors flag the practice changes following the introduction of the Land Registration Rules rr1 and 103 (SI 483/2012) and direct the reader to where the forms to cancel property adjustment orders can be located in the Land Registry Rules. The handbook contains practical and usefully annotated texts of all the main general family acts, constitutional references to family law, generally relevant acts and court rules as well as Brussels II bis. Even in the age of the internet, this book will save you time and money and if errors are made, it will not be the authors’ fault. The Irish Family Law Handbook is long established as an essential part of the family lawyer’s bag of tricks and the latest edition lives up to the high standards set by Kennedy and Maguire in previous editions. Keith Walsh, principal Keith Walsh Solicitors, Crumlin
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Summer 2016 dsba.ie
CHILDREN AND FAMILY RELATIONSHIPS LAW IN IRELAND
Dr Geoffrey Shannon, Clarus Press, 2016, €199 The 2015 Children and Family Relationships Act heralds a new era of rights for the family outside marriage. As Geoffrey Shannon says: it represents “the most significant change in family law in a generation and attempts to reflect the social reality of contemporary family life in Ireland”. It must also be viewed in the context of the recent child-centred constitutional amendment in relation to best interests of the child being of paramount consideration and hearing the voice of the child and the more recent constitutional amendment recognising same sex marriage. The 2015 Act also recognises children as having rights and grants new rights to a more extended and modern family. Geoffrey Shannon has produced the definitive work on the 2015 Act. His book is an authoritative analysis and critical examination of the Act. He clearly sets out how the 2015 Act will work in practice by reference to the newly amended district and circuit court rules as well as the rules of the superior courts. Practice and procedure in the district court in particular, is flagged as part of the examination of the Child and Family Relationships Act 2015. His cross referencing of the new Act with the new district court rules will be of considerable assistance to practitioners. As the title of the book indicates, Shannon is concerned not only with the 2015 Act but with all family and child relationships law, and as you would expect he provides an indepth analysis of the Adoption Act, 2010 as well as the 2016 Adoption (Amendment) Bill. Although not included in the 2015 Act, the issue of relocation is addressed in detail and he flags the difficulties the Irish courts face in determining whether the relocation of a child is in the child’s best interests or not. As this is an area with few Irish cases Shannon highlights relevant English case law as well as the recent Irish case of UV v VU. The book is divided into three parts; the first part focuses on the international legal framework and the most significant international instruments as they
affect the 2015 Act. In the first part Shannon also deals with children’s rights, parentage, guardianship, custody and access, dispute resolution and enforcement orders, adoption, maintenance and civil partnership. The international element permeates each chapter in the first part and Shannon includes references to the various international conventions, covenants and charters. He refers to the practical experience of other jurisdictions where appropriate. For example, when discussing custody and access he points out that the court when granting joint custody should precisely set out the terms of the order to ensure the parties do not mistakenly believe that they should have equal custody in terms of time spent with the child and he references the Australian experience following the introduction of a rebuttable presumption that equal parental responsibility was in the best interests of the child post separation. Australian courts then had to decide whether it would be in the best interests of the child and reasonably practicable to order equal time with both parents. Shannon indicates that significant problems followed this development in Australia and this law was viewed to be parent-centred rather than child-centred. The second part of the book is a fully annotated version of the 2015 Act containing helpful explanatory notes on almost every section of the Act. The third part contains the new district, circuit and superior court rules and forms which were introduced following the commencement of the 2015 Act. Shannon has annotated the rules and as they are cross referenced with his earlier chapters on the 2015 Act in part 1, it makes both the rules and the Act much more accessible and understandable to practitioners. It is not possible to properly read and apply the 2015 Act to even a straightforward matter without reference to at least one or two other family law statutes and the new district court rules, but thanks to Geoffrey Shannon’s masterpiece of clarity, scholarship and precision the 2015 Act and the whole area of children and family relationships law has become much more understandable and accessible for practitioners and those affected by the law. Equally important is the timing of this publication, coming less than six months after the introduction of the Act. It is entirely appropriate that the president of the district court – who has done so much to promote the child-centred approach to family law and who, along with her fellow district court judges, will be responsible for implementing the new approach to child and family relationships – provided the foreword for this book. Children and family relationships law should immediately become an essential part of any family lawyer’s library and practitioners owe Geoffrey Shannon a debt of gratitude for the huge time, effort and most importantly, expertise which he has clearly left on the pages of this book for practitioners to pick up and use for our clients’ benefit and to further our understanding of this new and complex law. Keith Walsh, principal of Keith Walsh Solicitors, Crumlin Special offers for DSBA Members: Quote Coupon Code DSBAFAM and get €10 OFF Children and Family Relations Law in Ireland: Practice and Procedure Plus FREE POSTAGE for a limited time only. Order at www.claruspress.ie the Parchment 47
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Litigation HIGH COURT UPDATE Practitioners in the Dublin area may have noticed that there is a notice of one of the high courts in the round hall stating that cases which are assessment only outside of Dublin may be transferred on consent to Dublin. We are pleased to state that Judge Kelly has now indicated that
cases where liability is in issue in Cork, Limerick and Sligo may now be transferred to Dublin. It is noted that the Dublin list has dissipated somewhat. The hip replacement cases have been taken out of the list for the moment which has cleared the way for specially fixed cases to be listed earlier. DSBA Litigation committee
IT Practice E-PRIVACY EU PUBLIC CONSULTATION The European Commission confirmed that it launched a public consultation on the review of the e-privacy directive in March 2016. A proposal will be presented to amend the directive by the end of 2016. The expected proposal to amend was on hold until the adoption of the
new proposed data protection regulation. The review of the e-privacy directive has been announced as one of the 16 initiatives to be adopted by the Commission by the end of 2016 in its Digital Single Market Strategy which was presented in May of last year. Interested parties should register their interest on the European Commission’s website for further information and updates. Greg Ryan, DSBA programmes director
Conveyancing A WORD OF CAUTION - ONLINE PRA MAPPING SEARCHES The Property Registration Authority’s (PRA) online service at www.landirect.ie offers a map-based search facility whereby a folio or address when entered (or simply a perusal of the online map), will show the area of land and indicate whether it is registered or not and whether surrounding areas are also registered. While of course this is a very useful facility, it may well become an essential one in the context of the purchase of unregistered land. The provision of the 2009 Act reducing a good root of title to 15 years allied to the obligations of all purchasers for value to register the purchased property means that it can happen that lands purchased in good faith turn out to have already been registered at the PRA. This writer recently became aware of circumstances as set out below: A purchasing solicitor was offered unregistered title going back 30 years. The title on its face was in order and in due course the purchase of the property completed. And thereafter the purchasing solicitor lodged in accordance with a purchaser’s obligations in that regard the deeds in the PRA. The PRA reverted to inform the purchasing solicitor that the land in question had already been registered in the PRA in the name of another party.
What appears to have happened in this case was that the freehold was purchased a number of years previously but that no reference was made to the fact that the freehold was registered land. But when it was carved into individual sites it was dealt with by way of registry of deeds assurance rather than a PRA transfer a number of years prior to the commencement of the root of title provided. In the circumstances prior title was not immediately available to prove/that the party registered as owner in the PRA had conveyed the property and a considerable amount of searching was required to prove title. Given that practitioners are obliged to lodge papers in the PRA and given the ease with which it is now possible to check online with the PRA as to whether or not a piece of property is registered or not, it seems that in those circumstances it would be prudent for every purchaser of unregistered land to carry out a check on the PRA Land Direct website to confirm that the land in question is not registered land. Obviously great care would have to be taken in perusing documents of title to ensure that there are no recitals referencing a folio but where there are not, it is nonetheless prudent in this writer’s view that the check be made especially given the mandatory obligation to register all assurances for value and the 15-year root of title that is often offered. Niall Cawley, DSBA Practice Management committee
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Summer 2016 dsba.ie Greg Ryan is principal of Greg Ryan Solicitors. He is programmes director of the DSBA
The Reform of EU Data Protection Rules
n 15th December 2015, the three executive bodies of Europe – the parliament, council and commission reached agreement on the new data protection rules which will establish a modern, harmonised data protection framework across the entirety of the European Union. These were then put to the Civil Liberties Committee of the European Parliament and also the Permanent Representatives Committee (COREPER) of the Council, which approved the agreements by very large majorities. The agreements were then approved by the European Council in December 2015, and thus acknowledges a major step forward in the implementation of the digital single market strategy. The regulation and directive were adopted on 8th April 2016 and adopted by the European Parliament on 14th April 2016, and published on 4th May 2016. The regulation will enter force on 24th May 2016, but will only apply from 25th May 2018. And the directive enters force on 5th May 2016 and EU member states, including Ireland, will have to transpose it into national law by 6th May 2018. The intent of the new general data protection regulation is to ensure that the consumer will receive clear and understandable information when the personal data is to be processed. Whenever consent is required, it will have to be given by a clear affirmative action, as opposed to the old “opt out” rules, before the company can process the data. The new rules also strengthen the right to be forgotten, which means that if there is no legitimate reason for a company to keep your data, and the data subject does not want the data to be kept any further, then the data has to be deleted. Internet users in Europe are justifiably concerned about their data and its security. Half of all European internet users are worried about becoming victims of fraud through misuse of their personal data. An overwhelming majority say that they would want to be informed should the data be lost or stolen. Only a third are aware that there is a national public authority, the Data Protection Authority, responsible for protecting their personal data, and a further one-third think that they have no control over that data at all. The legislative reform requires organisations to notify both the individuals affected and the Data Protection Commissioner without undue delay, and when feasible, within 72 hours, if data is accidentally or unlawfully destroyed, lost, altered or accessed by or disclosed
to unauthorised persons, where there is a risk to the individual’s rights. The intent is that the new stronger data protection rules will help increase trust in online services, so that consumers can use the new technologies in a more confident way, and thus grow the internet element of the internal market. The key changes are as follows: • A right to be forgotten, allowing you to have your data deleted. • Easier access to an individual’s own personal data. • A right to transfer personal data from one service provider to another. • When consent is required, clear affirmative action to give that consent is necessary. • More transparency about how the data is handled, with easy to understand information, especially for those websites aimed and targeted towards children. • Business organisations need to actively inform you about data breaches without delay. • Better enforcement of data protection rights through improved administrative and judicial remedies in cases of violation. • Increased responsibility and accountability for those processing personal data through data protection risk assessments, data protection officers, and the principles of data protection by design and data protection by default. The two latter principles, “data protection by design” and “data protection by default”, will in the future become essential principles in EU data protection rules. The intent is that data protection safeguards will be built into websites, products and services from the earliest stage of development, and that the default settings on social media networks will be privacy friendly. The regulations will also have an extra territorial effect applicable to a controller or processor not established in the EU, if the data process belongs to a data subject in the EU. Further, the sanctions are higher than was anticipated at the time of it passing parliament, with the potential for fines up to €20 million, or 4% of annual worldwide turnover for the previous year, whichever is greater. Finally, controllers or processors would be jointly liable for data protection breach, putting a far higher onus on the processors and controllers. While the new regime is to be welcomed, it does impose a range of new obligations on data processors that will need to be adhered to and carefully monitored to avoid liability. P the Parchment 49
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DSBA Younger Members News
Left: Aoife Redmond, Lavelle Solicitors; Paula Egan, Connolly Finan Fleming Solicitors; Suzanne Parker, Pearse Trust; Christine O’Sullivan, Byrne Wallace Far left: Jane Bourke, Gleeson McGrath Baldwin Solicitors; Malcolm Spencer; Kathy McDonald, Maples Left: Deirdre Farrell, Amorys Solicitors; Kiara Daly, Morgan McKinley Far left: Eoin O’Cuilleanain, William Fry Solicitors; Gavin Bluett, Leman Solicitors; Cormac Breatnach
Social Event to mark the Easter 1916 Rising Centenary The DSBA Younger Members’ held its first social event of the year in Doheny & Nesbitts bar on 14th April 2016 to mark the centenary of the 1916 Easter Rising. As a reminder of the theme of the evening’s social
gathering, the event commenced at 19.16 (7.16pm). The Younger Members had a fantastic speaker for the evening in the entertaining gaelgeoir Cormac Breatnach who is a
legal cost accountant by day but is an accomplished traditional musician also. There was a great turnout for the event agus bhí craic agus siamsaíochta ag gach duine a bhí i láthair.
DSBA YOUNGER MEMBERS’ SOCIAL EVENT EURO 2016
The Younger Members’ committee of the DSBA pictured at the social event on 22nd June for the Ireland against Italy soccer match
The DSBA Younger Members’ committee was delighted to host its second social event of 2016 on 22nd June 2016 for a screening of Ireland’s final group match in the Euro 2016 tournament against Italy. Our sincere thanks to Morgan McKinley for its sponsorship of the event. The event took place at McGrattans on Baggot Street and a wonderful crowd attended. All money raised from the event will be donated to the Emer Casey Foundation, www.emercaseyfoundation.com. the Parchment 51
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DSBA Younger Members Social Event Euro 2016
The DSBA Younger Members’ committee held a very successful social event on 22nd June 2016 at McGrattans on Baggot Street. A large crowd of younger solicitors gathered to enjoy Ireland beating Italy 1-0. All money raised on the night was donated to the Emer Casey Foundation. Our sincere thanks to Morgan McKinley for their sponsorship of the event.
Photography: Paul Sherwood
Left: Ronan Hill, Katen Greene, Kiara Daly, Jonathan Olden, Susan Nix, Morgan McKinley
Left: Sarah Browne, LK Shields, Blaithin Gallagher, Law Library Far left: Roisin Lawler, Maria Hayes, Grace Toher, Karla Macken, Shane Creamer, LK Shields
Right: Niall McCarthy, Sarah O’Toole, Michael Prior, Baily Homan Smyth McVeigh Far right: David Sheehan, Peter Brennan, Gartlan Furey
Left: Kiara Daly, Morgan McKinley, Sharon O’Connor, Matheson Middle: Cillian Thornton, Keith Walsh Solicitors, Ruth Prendeville, LK Shields Far left: Eoin O’Cinneide, Liadh Ui Chinneide
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The new e-Government Action Plan 2016-2020 The European Commission was expected to present the new e-Government Action Plan on 6th April 2016, and it will follow in the coming days. Once presented, it will be presented to the European Parliament and to the Council, who will then formally respond. The Commission intends to present a package of four ommunications aiming to (a) promote digitalisation of the EU industry; (b) accelerate the digitalisation of governments; (c) ensure better standard making and; (d) encourage the use of cloud computing. The new action plan will set out the future plans for the Commission for the next four years, including an initiative on what is known as the “once-only” principle. This is designed to ensure that businesses and citizens supply a certain standard of
information once, and that the public administration offices will then take action to internally share that data, so that no additional burden falls on the citizens and businesses. Obviously, that will require a very high degree of data protection and security. Further, the Commission has indicated that it will launch a pilot project for the once-only principle to try and create an EU wide e-Safe solution, which for example is intended to include a secure online repository for documents. The action plan is also expected to announce EU actions with the aim of making the interconnection of business registers a reality by 2017, extending and integrating the European and national portals towards a “Single Digital Gateway” to create a user-friendly information
system to assist citizens’ business, and finally accelerate the member states transitions towards full e-procurement and fully operational e-signatures. According to one of the Commission’s reports, contact points between the public authorities and citizens and businesses are currently fragmented, and are not operating to their optimum levels. It is hoped that the needs of businesses and citizens in cross-border activities will be better met by building on the Digital Services Infrastructure of the Connecting Europe facility, and extending and integrating the existing European portals networks and services and linking them into the Single Digital Gateway mentioned above. Greg Ryan is programmes director of the DSBA
DSBA Solicitors Soccer League 2016 The DSBA and its Younger Members’ committee are yet again organising the DSBA Solicitors’ soccer league this summer. There are 17 teams taking part in the league this year in three groups. There is a wide mix of teams from all sectors, large, mid-sized and small firms, the Legal Aid Board and the Law Library. The league will run over the course of the summer with the final scheduled for the end of the summer. Last year’s tournament saw Arthur Cox win the league in an exciting final where they beat A&L Goodbody 2-0. This year’s final will take place in September. Full details in relation to fixtures, results and the all important league tables are available on the DSBA website, www.dsba.ie and are updated on a weekly basis.
Group 1 Team Eversheds A&L Goodbody Arthur Cox DAC Beachcroft William Fry Legal Aid Board
Group 2 Team Byrne Wallace Criminal Fraternity Classy Birds Dillon Eustace LK Shields Philip Lee
Group 3 Team Maples and Calder Mason Hayes Curran Matheson McCann Fitz Law Library
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Lady Solicitor’s Lunch Friday 30th September 2016 for Lady Solicitors in the Kildare & University Club at 1pm. Drinks Reception at 12.30pm. Tickets: €60 For bookings and more information please contact firstname.lastname@example.org or Tel:01 476 3824.
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If not, please contact Maura Smith. Dublin Solicitors Bar Association, 1st Floor, 54 Dawson Street, Dublin 2, Ireland.
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Artificial Intelligence in Contract Analysis The big four accountancy giant, Deloitte, in a major development which could have implications for international law firms, has undertaken what is thought to be the world’s largest deployment of artificial intelligence in contract analysis. It has involved hundreds of projects, some with more than 100,000 contracts. For the last year over 3,000 users at Deloitte have been using a machine learning analysis platform to identify thousands of data points in contracts, which they say has led to between 20% to 90% time savings over actually having an individual professional review the documents. The AI software was developed by a company called Kira Systems (formerly Diligence Engine) and their chief executive, Noah Waisberg, has told “Legal Futures” that
the scale of the penetration of AI techniques throughout Deloitte’s professional practices is giving Deloitte an enormous competitive advantage. He reports that this helps the company immeasurably as automation is spreading throughout the organisation. He says “law firms need to make sure that they are developing their tech innovation and user adoption ‘muscles’. Neither is trivial to pick up and… it can be very dangerous to wait to innovate, since catch-up may not happen immediately”. The European Union has recently moved into the artificial intelligence space, and has agreed funding for a major EU project on legal artificial intelligence, which has now commenced. The project is called MIREL, which stands for Mining and Reasoning
with Legal texts – www.mirelproject.eu. The project states on its home page that the MIREL project will create an international and inter-sectorial network to define a formal framework and to develop tools for Mining and REeasoning with Legal texts, with the aim of translating these legal texts into formal representations that can be used for querying norms, compliance checking and decision support. It is intended to bridge the gap between the community working on legal ontologies and NLP parsers, and the community working on legal reasoning and formal logic. The co-ordinator is the University of Luxemburg, with the Universities of Boulogne, Torino and Huddersfield co-authoring. Greg Ryan, programmes director of the DSBA
FAMILY LITIGATION CHALLENGES – JUDICIAL PERSPECTIVES Conference 14th July 2016 Keith Walsh writes that a top class panel of English high court judges will travel to Dublin in July including Sir James Munby, president of the family law division of the High Court of England and Wales to share their views on current challenges in family law litigation. The conference will commence with dinner at the King’s Inns on the evening of Wednesday 13th July. Following closed judicial sessions on the morning of Thursday 14th July, the open programme will continue with a buffet lunch in the King’s Inns at 12.30pm followed by three open sessions. Each open session
will involve a presentation by an English judge and a brief response by an Irish judge. Among the Irish contributors will be Mrs Justice Finlay Geoghegan. There will also be a question and answer session. Attendance at these open sessions will attract three CPD points. The open sessions will cover the following areas: • General description of the family court system in England and Wales and the modernisation of public and private law, including transparency. • The voice of the child. • Cross border issues such as Article 15.
The conference which is organised by the Family Lawyers’ Association of Ireland, is being sponsored by the Irish Judicial Studies Institute, the Bar Council, the Law Society and the Family Lawyers’ Association of Ireland. Dublin family law solicitors Geraldine Keehan and Claire Feddis were involved in the organisation of this conference on behalf of the FLA. Further details concerning registration and booking for dinner will be available on the website of the Family Lawyers’ Association of Ireland in the coming weeks, www.familylawyers.ie.
Signing and Executing Online Transactions: the New eSignatures EU Regulation In 2000 the Electronic Commerce Act set the legal framework in Ireland for a brave new world of electronic signatures. In 16 years nothing much happened. On 1st July 2016, we’ll be hitting the promised land when the EU’s new “eIDAS” Regulation (EU No.910/2014), repeals the 1999 e-signatures directive implemented by the 2000 Act. Rolled out as part of the EU Digital Single Market strategy, eIDAS aims to increase trust and use in electronic Identification (eID) and electronic Trust Services (eTS). Aiming to provide a predictable regulatory cross-EU environment, something which
didn’t happen under the 1999 Directive, the core issue has always been to ensure legal certainty. While standardisation and mutual recognition will push us more confidently into the e-transactional world, there are some changes directly affecting ‘legal persons’ moving from working under the 1999 directive to the 2016 regulation. Under eIDAS, an “eSignature can only be used by a natural person to “sign”, i.e. mainly to express consent on the data the eSignature is put”. The EU Commission notes this is different to the 1999 directive where eSignature – which could also be
used by legal persons – was defined as a means for authentication. As the “signatory” is now a natural person, “certificates for eSignatures cannot be issued to legal persons anymore.” Certificates for eSeals the aim of which is to ensure the integrity and origin of data in the document which is to be signed, are available for legal persons, however, to use. Linda Ni Chualladh is regulatory counsel at An Post and is a member of the DSBA In House Lawyers committee
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DSBA Annual Dinner and Law Book Awards
The 3rd annual DSBA dinner and Law Book Awards took place at the DoubleTree Hotel, Dublin 4 on 17th June 2016. Guest of honour was the ambassador of the United Kingdom, Dominick John Chilcott. For a full report on the Law Book Award winners, go to pages 10 and 11.
Left: Law Society Skillnet group photo including director general of the Law Society, Ken Murphy
Left: Caroline Knightly; Naomi Mullally, O’Brien Lynam; Ellen O’Connor, Shannon & O’Connor Far left: Owen Burke; Ruth Milne; Mark Heslin, Beauchamps
Right: Laura Horan, MacGeehin Toale; Justin McKenna, partners at law; Kiara Daly, Morgan McKinley Far right: Eamonn Shannon and Greg Ryan
Left: Louise Leavy; Marie Armah-Kwantreng; Jennifer Simpson; Bloomsbury Professional Far left: Salette and Don Murphy, President Southern Law Association
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Summer 2016 dsba.ie Photography: Paul Sherwood
Above: Eamonn Shannon, President DSBA; his excellency Dominick John Chilcott, ambassador of the United Kingdom; Ken Murphy, Law Society
Above: Denise Fry, Aoife Costello, Zurich
Left: Winners Peter McKenna, Flor McCarthy, Tom Courtney Far left: MC for the evening Aine Hynes, Vice President of the DSBA
Right: Michelle Nolan, Law Society Skillnet; Terence Oâ€™Sullivan, TJOS Solicitors Far right: Ray Ryan, Niamh Ryan, Ryan & Crowley
Left: Winner Peter McKenna Far left: Anne Doyle, William Fry; Tommy Brennan, Peter Fitzpatrick & Co
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Photography: Michael Finn
The DSBA Property committee hosted a CPD seminar on 10th March 2016. The title of the seminar was 'Objections and Requisitions on Title 2014 Edition'. The speakers were Ronan McLoughlin, Gallagher Shatter, Aine Gleeson, Hayes and Mairead Cashman, Dublin City Council.
Above: Brendan McArdle, Marcus Lynch Solrs; speaker Tom Nolan Right: Olive Bourke, O'Connors; Brenda Kirrane, O'Connors Left: David Murphy, Corrigan & Corrigan; James Murphy, Daniel O'Connell & Son Far left: Betsy Nagle, Betsy Nagle; Roisin SlatteryGleeson, James Evans
Left: Simon Shire, Rostra Solrs; speaker Mairead Cashman Far left: Padraig Keenan, Ryan & Assocs; speaker Aine Gleeson
Right: Avril Gallagher, Gallagher & Co; Tom Honan, Tom Honan & Co Far right: Lesley Dempsey, McCormack & Sons; John Evans, GA Scully & Co
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Summer 2016 dsba.ie
Photography: Sophia Lindblom
The DSBA Litigation committee hosted a CPD seminar on 14th April 2016. The title of the seminar was 'An overview of recent developments in Discovery and eDiscovery'. The speakers were Lisa Broderick, DAC Beachcroft, Andrew Fitzpatrick, BL and Karyn Harty, McCann Fitzgerald. The seminar was chaired by Mr Justice Brian McGovern of the high court.
Above: speaker Karyn Harty, McCann Fitzgerald; Mr Justice Brian McGovern; speaker Lisa Broderick, DAC Beachcroft Left: Hilda Mannix, Ronan Daly Jermyn; Eoin Casey, Dillon
Right: Stephen King, A & L Goodbody; Marcus Walsh, A & L Goodbody Far right: Rachel Halligan, Dillon Eustace; Patricia Harrington, RTE; Deirdre Kelly, RTE
Left: Noel McDonald, Seamus Maguire; Denis McMahon, McMahon O'Brien Tynan Far left: Kathryn Ward, Kathryn Ward Solr; Gerard Prenderville, Newmans Right: Liz Quinn, Mason Hayes & Curran; Laura Gormley, Mason Hayes & Curran; Linda NĂ Chualladh, An Post Far right: Niall O'Reilly, Lawlor O'Reilly & Co; Tom Halligan, Gaffney Halligan; David Turner, David M Turner Solrs
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Practice Management Seminar
The DSBA Practice Management committee hosted a CPD seminar on 21st April 2016 entitled ‘Mandatory Regulation’. The speakers were Rory O’Neill, investigating accountant, Law Society, Davnet O’Driscoll, Amorys Solicitors, John Elliott, registrar of solicitors and director of regulation and John Glynn, John Glynn and Company Solicitors.
Photography: Michael Finn
Left: Betsy Nagle, Betsy Nagle; John Glynn, John Glynn & Co; Deirdre Owens, Deirdre Owens Solr; Mary Arnold, O’Leary Arnold
Left: David Murphy, Corrigan & Corrigan; Nora Morris, James A Connolly Far left: Marjorie Murphy, Murphy McElligott; Catherine Magennis, Devaney & Partners; Caroline Keane, Maurice Veale
Right: Dave Cummins, Dillon Eustace; Valerie Bowens, Dillon Eustace Far right: Helen Doyle, Doyle Solicitors; Nela Frances, DFMG
Left: Gina Drum, John O’Connor Solr; Joanne Hoban, Hoban Boino Far left: Joe Kelly, Cannons; Bernard Creavin, Creavin & Co
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Summer 2016 dsba.ie Photography: Michael Finn
The DSBA Litigation committee hosted a CPD seminar on 5th May 2016. The title of the seminar was ‘Personal Injury Update’. The speakers were Finbarr Fox, SC, Claire Hogan, BL, John Byrne, Joseph G Byrne & Sons, Actuaries, William O’Keeffe, forensic engineer, Tony O’Keeffe and Partners. The seminar was chaired by Mr Justice Anthony Barr.
Above: Finbarr Fox, SC; William O’Keeffe; Judge Anthony Barr; Claire Hogan, BL; John Byrne Left: Gerard Prendiville, Newmans; Ciaran Kirwin, Margetson & Green; William O’Keeffe, Tony O’Keeffe & Prtns. Far left: Brendan Comyn, CSSO; Aine Wright, James P Evans
Right: Claire Hogan, BL; Mr Justice Anthony Barr Far right: Cillian Thornton, Keith Walsh Solr; Jody Cantillon, Gore & Grimes
Left: Finbarr Fox, SC; Patricia Harrington, RTE Far left: Michelle Armstrong, MacGeehin Toale; Laura Horan, MacGeehin Toale
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Closing Argument Stuart Gilhooly
Stuart Gilhooly is a partner at HJ Ward & Co Solicitors and former president of the DSBA. He has won a number of journalistic awards for his writing
Digging for Gold
en aren’t supposed to cry. Or at least that used to be the rule. Then suddenly we woke up one day and it was ok. This column has been crying ever since. Rom coms, children’s school plays, farewell speeches. You name it, something always gets caught in the eye. So, it was no surprise that there wasn’t a dry eye in the house when David Walsh was finished giving his lecture to the Law Society conference a few weeks ago. The award-winning Sunday Times journalist was part of a stunning double act with the equally impressive Judy Khan, QC who represented 77 of the families who lost loved ones at the Hillsborough disaster in 1989. At first glance, it was difficult to see what relevance Walsh had to the title ‘Sport and the Law’ but as he spoke, it was clear that he had in fact, more in common with the great lawyers than many of us in the room. Because Walsh saw an injustice and went about exposing it. Relentlessly and against an establishment that didn’t want him to succeed. His main claim to fame is his pursuit of Lance Armstrong, the cyclist who had won a monumental and record smashing seven Tours de France in a row. Except David Walsh and a few other journalists including the equally dogmatic Paul Kimmage, didn’t believe him and knew something wasn’t right. He spent 13 years chasing the truth and eventually he was proved right. Armstrong was the biggest fraud in the history of
competitive sport and despite being abused, ignored, sued and losing friendships along the way, Walsh got there in the end. It is the stuff of legend and sounds like a movie which it has indeed become, starring Chris O’Dowd. But what had the room reaching for the tissues was the story of what drove him to question what seemed implausible but appeared to everyone else to be a fairytale come true. At the age of 11, Walsh’s eldest John was killed ironically, while riding his bike. He was an intelligent and inquisitive child and upon speaking to one of his teachers, Walsh was told a great story of when said teacher had told the children, then aged about six, about the story of the nativity in Bethlehem. At this point, young John puts up his hand and says “Miss, you say Joseph was a poor carpenter and he and Mary had no money. What did they do with the gold that the three wise men brought?” His teacher was dumbfounded and when David Walsh was told this story it had such an effect on him that he was determined never to take anything at face value again. What did Joseph do with the gold, he kept asking himself ? The same lesson can be learned from the 96 families who refused to believe what they were told about the day their loved ones died while attending a football match. The establishment backed the police and blamed drunken fans. This was the narrative accepted by many outside Liverpool, until a few years ago when after 25 years of
Juries are wrong sometimes. Judges are human too. They all make mistakes and sometimes the evidence appears clearcut and only the most skilled advocate can see beyond it
incessant campaigning, many false dawns and huge resistance from the establishment, the Hillsborough inquest finally gave them the answers they wanted and had always believed in. They didn’t take no for an answer and many of the most tenacious campaigners, including Margaret Aspinall and the now deceased Anne Williams, were ordinary people who up until that point had led unexceptional lives. Their determination to right the wrongs done to their sons and families saw them fight every decision that failed to give them the justice they knew had been denied to them. It is these people that we should take our lead from. As lawyers, we are sometimes too clinical. The jury has given the verdict so it must be right. Maybe, but maybe not. Juries are wrong sometimes. Judges are human too. They all make mistakes and sometimes the evidence appears clearcut and only the most skilled advocate can see beyond it. Our clients come to us because we have nous and the wherewithal to expose injustice when we see it. We have no real legal aid system in this country so there has to be times when we are prepared to take on a case where there is little or no financial reward in order to get the right result. We all have busy practices but there is nothing more satisfying than winning one against the head. And if anyone has the answer to John’s question, this column would love to know. What did Joseph do with the gold? P
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