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D UB LIN SOLICITORS’ B AR ASSOCIATION MAGAZ INE | SUMMER 2017 | ISSU E 72

STUART GILHOOLY CROSS-EXAMINED RESIDENTIAL TENANCIES AGREEMENT LAUNCHED

BALANCING ACT

Is the scales tipping in favour of women?

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Summer 2017 dsba.ie

From the Editor

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elcome to the summer edition of the Parchment. We focus on women and the law in this edition and Professor Irene Lynch Fannon from UCC provides an insight into an interesting survey being undertaken in this area, see page 40. Kevin O’Higgins interviews Arthur Cox partner Florence Loric whose story shows the fighting French spirit in getting to the top in Ireland. Noeline Blackwell provides the closing argument and reveals a frightening statistic from an EU survey that 75% of women in qualified professions have been victims of sexual harassment. Costs are a big focus in this edition of the Parchment. Julie Doyle interviews the new Taxing Master of the High Court, Paul Behan following his recent appointment. Stephen Fitzpatrick reports on new High Court Direction HC-71 which was recently introduced by Mr. Justice Peter Kelly, President of the High Court. The much-awaited Supreme Court decision in Sheehan -v- Corr is to be warmly welcomed and Shane O’Donnell summarises

the main points in his article. We have articles on the launch of the revised DSBA Residential Tenancies Agreement, changes to the Circuit Court Family Law Rules and awards in defamation actions. Dara Robinson and Richard Young call for the urgent reform of sexual offences legislation and Cormac Little looks into the Brexit crystal ball. Add in a feature on the winners of the recent DSBA Book Awards, an in-depth interview with Stuart Gilhooly, President of the Law Society and news, photocall and in practice notes - I hope you enjoy reading this edition. Have a great summer.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2016/2017

ROBERT RYAN DSBA Vice President

GREG RYAN Treasurer Chair - Commercial Law Committee

ELAINE GIVEN Honorary Secretary

TONY O’SULLIVAN Programmes Director

JOSEPH O’MALLEY Chairman of the Litigation Commitee

DIEGO GALLAGHER Chair - IP and Technology Committee

SUSAN MARTIN Chair of Family Law Committee

JOHN O’MALLEY

MATTHEW KENNY

NIALL CAWLEY

LAURA HORAN Chair of Younger Members’ Committee

PAUL RYAN Chair of In House Committee

JOAN DORAN

KILLIAN O’REILLY

PUBLISHED BY The Dublin Solicitors’ Bar Association, 1st Floor, 54 Dawson Street, Dublin 2.

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

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

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

AINE HYNES DSBA President

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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WHEN YOU HAVE FINISHED WITH THIS MAGAZINE PLEASE RECYCLE IT.

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Summer 2017

Contents 6

Brexit Negotiations: Key Legal Milestones Cormac Little says that it is highly unlikely that the future trading relationship of the UK with the EU will be agreed in advance of Brexit

8

DSBA Annual Book Award Winners

High Court Practice Direction 71 - A step in the right direction Stephen Fitzpatrick assesses the New High Court Practice Direction in relation to costs

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Counting the Cost

24

Circuit Court Rule Family Law Changes

Julie Doyle meets up with Paul Behan, the new Taxing Master of the High Court

Keith Walsh looks at the changes which came into effect on 14th June 2017

Dublin Solicitors’ Bar Association 1st Floor, 54 Dawson Street, Dublin 2, Ireland T: 01 670 6089 E: info@dsba.ie W: www.dsba.ie

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CROSS EXAMINED... STUART GILHOOLY

A report on the recently crowned winners at the DSBA Awards Ceremony celebrating the best in Irish legal writing

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I got serious abuse [by phone and on social media], I think every swear word that was invented was used about me during those few days

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Summer 2017 dsba.ie

Contents

REGULAR FEATURES 01 04 58 59 61 64

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

40 26

Seesaw Awards in Defamation Matthew Austin reports on a number of judgments handed down recently which relate to the size of damages awards in defamation cases

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Cross Examination

32

Legal Costs Update Sheehan -v- Corr

Killian Morris interviews Law Society President Stuart Gilhooly

Shane O’Donnell summaries the main points of the landmark court decision and provides some other updates from the world of legal costs

40

Gender (in) Justice

44

Vive La France

51

2017 Conditions of Sale

56

Victims of Crime

24

A major research study into Women in the Law is currently underway at University College Cork. Professor Irene Lynch Fannon reveals some of the findings to date and foresees certain results

Kevin O’Higgins meets Florence Loric of Arthur Cox

Tomás Nyhan reviews the revised General Condition 36 of the Law Society Conditions of Sale which relates to planning and development

Miska Hanahoe assesses The Criminal Justice (Victims of Crime) Bill 2016

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Message from the President

Progress Aplenty

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his summer edition of the Parchment is coming to you hot on the (high) heels of our Midsummer gala dinner and Law Book Awards and oh what a night. The Conrad’s Art Deco dining room was filled to capacity with the great and the good decked out in their finery and the party kept going until the break of day! The success of the night is due to the great efforts of your council. In addition, my thanks to our special guest, His Honour, Justice Peter Kelly; past president Keith Walsh for all his work on the Law Book Awards and of course, to Joan Doran for organising those gorgeous goody bags. In this edition of the Parchment we celebrate the contribution of women to the legal profession. In 2014 we became the first county in the world where the numbers of female solicitors exceed male solicitors. On 22nd June 2017, former Chief State Solicitor, Eileen Creedon, swore her declaration in the Supreme Court, becoming the first female solicitor appointed to the High Court. I for one, hope this appointment marks an important milestone, encouraging other female solicitors to aim for the highest positions in the legal profession. To see what the DSBA could do to promote equality in the profession, in January this year, I met with the Irish Women’s Lawyers’ Association to assist in updating the Women in Justice survey. The survey results were launched at our Be Bold for Change symposium, held in collaboration with the IWLA and Skillnets. You will see Professor Irene Lynch Fannon’s article pages 40-42 of this issue. A key development in the last number of months has been the issuing of High Court Practice Direction 71 by the Honourable Mr Justice Peter Kelly, President of the High Court, which came into effect on 24th April 2017. The Practice Direction followed from representations made by me on your behalf concerning the impact on our members and their employees arising out of the long delays in the taxation of costs. On behalf of our members I want to thank President Kelly for issuing this Practice Direction. It means that a reasonable portion of legal costs can be recovered almost immediately after a cost order is made. Other highlights this quarter include the work of the Legal Services Taskforce on our submission to the Authority recommending the implementation of limited liability partnerships at the earliest opportunity and the launch of the updated DSBA Residential Tenancies Agreement. Many

thanks to Marissa O’Keeffe and Ethna Ryan of the Property Law Committee along with their Chair, Ronan MacLoughlin for the extraordinary efforts they have put in on behalf of our members in updating the precedent. In other news, on 30th June we held the first of, I hope many, the John Buckley Memorial cup cricket matches, between the DSBA and the Bar Council of Ireland. And the annual conference to Santiago is now fully booked – we are looking for further rooms to accommodate those on the waiting list. It is with great sadness that I write of the sudden and tragic death of Danielle Kerins, a valued and vibrant member of our Family Law Committee.

Danielle was only 30 years of age. She was a great contributor to our committee and to the profession and she had a great future ahead. My thoughts are with her fiancé, Mark Raleigh; her parents Mark and Jackie; her bother David and all her friends and colleagues in the profession and to her fellow members of the Family Law Committee who are devastated by her loss. Finally, as ever members, please do not hesitate to contact me at any time, should you have any issues which the DSBA can progress on your behalf. I am contactable at my office, 01-6779097 or at my email address: ainehynes@stjohnsolicitors.ie. Aine Hynes, DSBA President

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Brexit Negotiations: Key Legal Milestones The formal withdrawal negotiations between the EU and the UK began on 19th June 2017. These talks are focusing on three key issues and are likely to last for around 12 months in order to give sufficient time to gain the necessary EU and UK consents for any resulting agreement prior to March 2019. Cormac Little says that it is highly unlikely that the future trading relationship of the UK with the EU will be agreed in advance of Brexit

Article 50 TEU Article 50(1) of the Treaty on the European Union (TEU) states that any member state has the right to withdraw from the EU in accordance with its own constitutional requirements. On 23rd June 2016, the UK voted to leave the EU. The result of this referendum led to the submission of the UK’s formal notice to withdraw, under Article 50(2) TEU, earlier this year. In accordance with Article 50(3) TEU, the UK is scheduled to leave the EU on 29th March 2019, exactly two years after the invocation of Article 50(2) TEU, regardless of whether withdrawal arrangements are agreed. However, this period may be extended provided the UK and the remaining 27 member states all consent. Alas, Ireland has no unilateral right of veto on any EU/ UK withdrawal deal. Therefore, if the Irish Government is unhappy with any element of the proposed agreement, it will need the support of some other member states.

Priorities in the Withdrawal Negotiations The EU has identified three priorities to be addressed in the current talks, namely: citizens’ rights, the withdrawal bill or so-called financial settlement, and the situation of Northern Ireland.

Citizens’ Rights Brexit has been a cause of uncertainty for many European citizens and the EU’s primary focus is to allay these concerns. The EU intends that the rights of both EU citizens in the UK and UK citizens in the EU, as well as their families should be recognised. Citizens such as workers, students and family members who have made life choices on the basis of EU law should be protected. The EU intends that the withdrawal agreement should safeguard the rights which citizens enjoy at the date of Brexit. The UK is likely to push for similar guarantees for its citizens. Accordingly, the conditional rights of family members of EU/UK citizens to accompany or join their relatives in the UK/elsewhere in the EU, are likely to be contained in any withdrawal arrangement. Moreover, the EU is arguing that its citizens should continue to acquire the right to permanent residence in the UK after legally living there for a continuous period of five years, (even if they moved to the UK less than five years before the date of withdrawal). It will be interesting to watch the UK’s attitude to these issues given that one of the key planks of the ‘Leave’ side in last year’s referendum campaign was the need to curb immigration.

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Summer 2017 dsba.ie Cormac Little is a partner and head of William Fry’s Competition and Regulation Department, specialising in EU and Irish competition, merger control and public procurement rules

Brexit

Financial Settlement Of equal importance to the EU is the financial settlement. This issue is based on the principle that the UK must honour in full, its financial obligations undertaken over the duration of its EU membership. These include the UK’s commitment to the EU’s budget allied to the participation of the UK in specific funds and projects related to EU policies such as the European Investment Bank, the European Central Bank and the Facility for Refugees in Turkey. This matter is, for obvious reasons, likely to be highly contentious. The UK’s starting position is that it will owe the EU nothing. This position may be difficult to maintain particularly given the UK’s wish to open negotiations with the EU on a free trade agreement. Northern Ireland Both the EU and the UK have underlined their individual wish of continuing to support peace, stability and reconciliation on the island of Ireland. Needless to say, our unique position brings with it challenges that require flexible and innovative solutions. Indeed, both parties intend that nothing in any withdrawal agreement should undermine the objectives and commitments set out in the 1998 Good Friday Agreement. Another goal is to avoid the creation of a ‘hard border’ on the island of Ireland. There is also a desire to maintain the ‘common travel area’. The withdrawal agreement should also address issues arising from the transit of goods to and from Ireland via the United Kingdom. The rules adopted by the EU, over a decade ago, to address the special situation of the Russian enclave of Kaliningrad on the Baltic Sea are of obvious relevance to the situation of Ireland if and when the UK leaves the EU. For example, the fact that the EU allows goods to be transported across Poland/Lithuania to/from Russia/Kaliningrad gives a clear precedent for the UK to allow goods to be moved in a frictionless manner between Ireland and the rest of the EU across its territory.

Phasing – Future of the EU/UK Trading Relations While the UK would like to discuss both its withdrawal from, and future relationship with the EU in tandem, Brussels wishes to resolve the disentanglement first. In any event, given the time normally taken to agree such deals, it will be very difficult to reach an EU/UK trade deal by March 2019. In this regard, the Court of Justice of the EU’s 16th May 2017 ruling on the EU/Singapore Free Trade Agreement (FTA) provides some useful insights into the possible timing and scope of future negotiations. It is worth noting that it took nearly five years for the EU and Singapore to agree the FTA. (This period excludes the time required to get the necessary EU approvals.) The key substantive questions considered by the CJEU were whether the EU has exclusive competence to agree the relevant provisions and if not, which FTA provisions fall under the shared competence of the EU and its member states. Matters of shared competence require approval from both the EU and its member states. (As can been seen from last year’s initial opposition of the Parliament of Wallonia in Belgium to the Comprehensive

Economic and Trade Agreement or CETA between the EU and Canada, this could result in significant delays.) The CJEU found that the answer to these questions largely depends on whether each provision of the FTA has a specific link with the trade areas of exclusive EU competence. Given the EU’s exclusive competence under Article 50 TEU, the CJEU’s ruling on the FTA is not relevant to any withdrawal talks with the UK. However, the Court’s findings are likely to have a major impact on any future trade talks. The UK will need to balance its desire for a comprehensive trade agreement with its wish to avoid potential delays. If the UK limits its focus to areas of exclusive EU competence, it will be far less challenging to attain the necessary approval. However, if the UK’s aims extend into areas of shared competence, our closest neighbour will have to be prepared for significant delays.

Conclusion At its core, Brexit is driven by political considerations. Given the ongoing uncertain state of the UK body politic, the entire process is likely to remain unpredictable. While the UK is currently due to leave the EU in late March 2019, it is not certain that a withdrawal agreement will be reached in time, and thus, this deadline could well be extended. P the Parchment 7

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Annual DSBA Book Awards The prestigious fourth annual DSBA Book Awards ceremony celebrated the best of legal writing over the past 12 months. The distinguished event took place at the Conrad Hotel, Earlsfort Terrace on Friday 23rd June 2017. The President of the High Court, Mr Justice Peter Kelly was guest of honour and presented the winners with their much-deserved awards

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n a humorous speech, Mr Justice Kelly paid tribute to each of the book award nominees and praised them for their work and contribution to the law. He reminisced that there was a dearth of legal books when he started out as a young barrister and said that there was in fact, no Irish legal textbooks. 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:

Mr Justice Peter Kelly and Olive Doyle, Byrne Wallace (sponsor) present Michael Boylan with the Practical Law Book of the Year Award

John Geary, Editor of the Parchment accepts the award of Law Book of the Year from Mr Justice Peter Kelly, on behalf of Ruadhan MacCormaic for his book, The Supreme Court

- 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 the Law, sponsored by Law Society Skillsnet. In an impressive and crowded field of nominees for Law Book of the Year which included The Politics of Judicial Selection in Ireland (Jennifer Carroll McNeill/Four Courts Press); Children and Family Relationships Law in Ireland: Practice and Procedure (Dr Geoffrey Shannon/Clarus Press); Keane on Company Law (5th edition, G Brian Hutchinson/Bloomsbury Professional); The Supreme Court (Ruadhan MacCormaic/Penguin); Intellectual Property Law in Ireland (4th edition, Robert Clarke, Shane Smyth, Niamh Hall/ Bloomsbury Professional); Medicine, Ethics and the Law (3rd edition, Deirdre Madden/Four Courts

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Summer 2017 dsba.ie Photography: Paul Sherwood

Press) and the Law of Companies (4th edition, Thomas B Courtney/Bloomsbury Professional). The winner of the DSBA Law Book of the Year went to Ruadhan MacCormaic for his book, The Supreme Court. Unfortunately, Ruadhan was unavoidably overseas on the night, so Editor of the Parchment, John Geary accepted the award from Mr Justice Peter Kelly on Ruadhan’s behalf. The Practical Law Book of the Year Award was sponsored by Peter Fitzpatrick & Company Cost Accountants and the nominees included Irish Family Law Handbook (5th edition, Deirdre Kennedy, Elizabeth Maguire/ Bloomsbury Professional); Murdoch’s Dictionary of Irish Law (6th edition, Brian Hunt/ Bloomsbury Professional); Law and Finance in Retirement (3rd edition, John Costello/ Blackhall Publishing); A Practical Guide to Medical Negligence Litigation (Michael Boylan/ Bloomsbury Professional) and The Modern Family: Relationships and the Law (Tim Bracken/Clarus Press). The judges’ choice for the winner of the Practical Law Book of the Year Award was A Practical Guide to Medical Negligence Litigation by Michael Boylan. The Outstanding Contribution to Legal Scholarship Award in collaboration with Law Society Skillnets was awarded to Dr Geoffrey Shannon. Mr Justice Peter Kelly presented Dr Shannon with his award for his distinguished contributions to the law over many years. A new award was introduced on the night “Best Law Book for the Layperson” due to the outstanding calibre of entries in Practical Law Book of the Year category. The worthy recipient was John Costello for his book, Law and Finance in Retirement. The annual DSBA Book Awards were held in conjunction with the DSBA 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 also to our sponsors ByrneWallace Solicitors, Peter Fitzpatrick & Company Cost Accountants and Law Society Skillsnet – without whom the event would not have been possible. P

News

DSBA President Aine Hynes and Mr Justice Peter Kelly pictured at the recent book awards dinner at the Conrad Hotel

John Costello (left) winner of the Best Law Book for the Layperson, received his award from Mr Justice Peter Kelly and Martin Raftery of Peter Fitzpatrick & Co Cost Accountants (sponsor)

Dr Geoffrey Shannon (left) winner of the Outstanding Contribution to Legal Scholarship Award receives his accolade from Mr Justice Peter Kelly and Brendan Twomey of Law Society Skillsnet (sponsor) the Parchment 9

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HC 71 - A Step in the Right Direction Stephen Fitzpatrick of Peter Fitzpatrick & Company Legal Cost Accountants assesses the New High Court Practice Direction HC 71 which has opened the way for solicitors to seek the payment of their costs on account following the hearing or settlement of an action

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his Practice Direction would not have been necessary if all in the taxation of costs world was in order. This Direction recognised the existence of real problems. The reasons for such are complicated and beyond this discussion but contributing factors were internal difficulties within the Taxing Masters office, poor resources and a notable change in how taxations were conducted. The combined effect of these led to inordinate and unacceptable delays. A struggling system was on the ropes when a kidney punch was landed by the Court of Appeal decision of Sheehan v Corr in June of 2016. It for the best part brought the process to an almost complete halt. That decision inter alia suggested the procedures and methodology of taxation of costs were entirely wrong. Even the concept of what constituted a bill of costs was anything but clear as a result. The consequences were stark and the effect seriously compromised the general administration of justice. Indeed the Supreme Court acknowledged the far reaching impact of the Court of Appeal decision when it admitted the appeal on the grounds of public importance. The problems were acute to say the least and accordingly the President of the High Court, Mr Justice Peter Kelly with the assistance of the President of the DSBA, Aine Hynes came to the rescue and issued HC71 (and both deserve credit for their innovative solution). The Practice Direction reminded parties of an already existing rule of the superior courts that authorised applications for payments on account.

HC 71 has had a profound effect. It provided an immediate adrenalin jab for any party caught up in a taxation hearing or facing delay. In a sense, it rebalanced the rights between the parties. Delay and cost of taxation were being used to tactical and unfair advantage. Claimants of costs had nowhere to quickly and efficiently have their disputes heard and were pressured into making costs decisions based on an unfair playing field. HC 71 was an important step in levelling that pitch.

How Does it Work ? The Practice Direction is only a few weeks old and although the courts have seen increased traffic, anecdotal reports are that there is no deluge of applications. That is important as the courts’ valuable time does not want to be overcome by applications of this nature. This may be because many parties are agreeing payments without the need for an application and also perhaps because the change in monetary jurisdiction has removed many personal injury cases out of the High Court and into the Circuit Court. There are no specific rules about how applications should be made. Reading the Direction at face value suggests that it is not meant to be a costs generating event and therefore no formal motion or affidavit is required. Questions have been posed about whether it applies to final orders for costs already made. Undoubtedly an application can be made (on sufficient notice) in a live case prior to the final order, but it appears clear that

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Summer 2017 dsba.ie Stephen Fitzpatrick is the principal of Peter Fitzpatrick & Co Legal Cost Accountants. He is a board member of the Legal Services Regulatory Authority

Costs

applications can be made for orders already in existence once the preconditions are met. The key words of the Direction are: • no dispute as to the liability for the payment of costs; • a reasonable sum on account • on an undertaking being given by the Solicitor. The existence of a solicitor’s undertaking to pay back any overpayment is a key component and the reason why the courts do not have to conduct substantive hearings on the quantum of the ultimate costs that might actually be agreed or taxed. The undertaking means the risk is assumed by the claimant’s solicitor and accordingly, that fact alone should encourage prudence and reasonableness.

What is a Reasonable Sum? This is where your legal costs accountant may be able to assist you. The court is not replacing the function of the Taxing Master and thereby conducting a hearing on minutiae of a bill. The court is concerned with a broader perspective, a range of costs that is reasonable for a part payment. Your legal costs accountant will have first-hand experience of the ranges or median figures of total costs and can guide you on what global sum is reasonable. Already many parties have had their respective legal costs accountants agree the appropriate payment, but where no agreement can be reached then a number of options might arise. The object is to assist the court in making a quick and efficient decision on what should be paid. A short opinion or statement from the legal costs accountants of both parties can be placed before the court and a determination made on that. In cases of substance and high value, a formal opinion or report might be sought where there is a significant difference of opinion as to what a reasonable sum is. The courts have long since accepted this type of approach. In official liquidations, receiverships and liquidations, payments on account are often granted on foot of proper reports of legal costs accountants which are also based on solicitors’ undertakings to repay any surplus. In the case of HC 71 they may not have to be quite as elaborate. It is early days but since March most payments have been agreed with relative ease. What this says is that most parties are readily finding the range of payment on account of costs that is reasonable. I see no reason why that should not continue and it speaks to the success of the Practice Direction that most parties are engaging sensibly. There is no formula for determining a reasonable sum. A percentage of the probable range of ultimate final costs is how it has been dealt with so far. I have no empirical evidence of what the courts have allowed, but by agreement, I have noted a spread of payments of 30-50% of the likely final position. There are important considerations for not overclaiming or overpaying. The payment has to be finely balanced to alleviate any financial stress of the claimant but also not pay so much as to discourage the claimant from having an incentive to bring the costs to a swift conclusion. It goes without saying that a paying party needs reasonable notice and time to process any request.

Will the Necessity for HC 71 Lessen? The principle of seeking a payment on account exists in the superior court rules and should perhaps remain, over time for appropriate cases. Costs follow the event

and once successful and an order has been made, the costs are owed by the losing side at that moment in time. In principle the right to apply should stay for the foreseeable future, however it remains to be seen whether the grounds for these applications can be based on delay. Several developments since the Practice Direction issued in March have changed the legal costs landscape and the movement of cases: • Taxation lists are fully operational once again and the appointment of a second Taxing Master (Paul M Behan) has addressed a resourcing issue. • Master Behan and Master O’Neill are conducting taxation hearings in a fashion that respects the constitutional imperative to conclude hearings with reasonable expedition. • Both Taxing Masters are strongly encouraging prehearing engagement by parties. This is having a positive effect on taxation lists (as only necessary items are being assessed). • Both Taxing Masters are sitting outside of the normal legal terms in order to facilitate parties thereby facilitating a higher output of decisions. This renewed vigour has a consequent effect on settlements and these too are now moving more freely. • ADR in legal costs is now commonplace and ensuring more costs are resolved informally. A high brow panel of 30 legal costs experts (www.legalcostsadr.com) comprising solicitors, counsel, legal costs accountants, a former Supreme Court judge and two former Taxing Masters is resolving disputes. • The controversies and confusion caused by the Court of Appeal in the Sheehan v Corr decision on how costs should be assessed and what form bills should take is no more as the Supreme Court has now clarified the law. This is having a positive effect on lists. • The Minister for Justice announced in February that the legal costs reforms (adjudication) would become operational this autumn. This may be pushed out to early 2018 but change is around the corner.

The existence of a solicitor’s undertaking to pay back any overpayment is a key component and the reason why the courts do not have to conduct substantive hearings on the quantum of the ultimate costs that might actually be agreed or taxed

HC 71 was and is an important step in the right direction. Used appropriately it brings benefits for all litigants. It may well prove to be the turning point in a future era of positive legal costs developments. P the Parchment 11

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Dara Robinson is a former Chairman of the Law Society’s Criminal Law Committee and Richard Young is the current Chair of the DSBA Criminal Law Committee. Both are partners in the Dublin criminal defence firm Sheehan and Partners

Sexual Offences Legislation in Urgent Need of Reform Dara Robinson and Richard Young critique the new Criminal Law (Sexual Offences) Act 2017 and conclude that whilst the new legislation is to be welcomed, currently at least ten major statutes concerned with sexual offending need to be urgently brought into one single piece of legislation in order to avoid ongoing confusion

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ith surprisingly little fanfare, new legislation to protect children against sexual predators hit the statute books earlier this year in the form of the Criminal Law (Sexual Offences) Act, 2017. Based mainly on a European directive the Act was for the most part, commenced in late March 2017, although some significant provisions remain to be brought into operation. The most important sections of the new Act relate to the sexual exploitation of children, being the whole of Part 2, sections 3 to 19. Various sections create offences of providing a child for the purpose of sexual exploitation, invitation to sexual touching, sexual activity in the presence of a child, use of technology to facilitate sexual exploitation of a child, and there are amendments to the now well established child pornography laws. The Act does not however, limit itself to the protection of children. Part 3 prohibits sexual acts with “protected persons” – being a person who lacks the capacity to consent by reason of mental or intellectual disability or mental illness. The same part prohibits sexual acts by “a person in authority” – essentially a teacher or carer. On any account, this is a laudable and necessary set of provisions. Part 4 concerns itself with offences surrounding the “purchase of sexual services” – criminalising those who offer money to persons including prostitutes, for sex. More serious offences are created within this part relating to those who organise prostitution and who prey on trafficked individuals. Section 27 requires a

report to be laid before the Oireachtas in three years time on the operation of the provisions criminalising the purchasers of sexual services. Part 5 relates to the very rare offences of incest, although there is little new law in the definition of the crime itself. Sections 29 and 30 restate the law on criminal proceedings for these unusual crimes, being anonymised and in camera, for very good reasons. Part 6 has yet to be commenced and contains provisions likely to be highly controversial, especially a new statutory procedure to determine whether the counselling or therapeutic records of victims of crime should be disclosed to the defence in cases where victims have sought help following an alleged sexual assault, and where a trial is pending. The criteria for judicial determination of this issue, now a common feature of criminal litigation, include among a dozen or so, “the reasonable expectation of privacy with respect to the record” and “the public interest in encouraging the reporting of sexual offences”. Given that such records tend now to be provided by the DPP to accused persons at their request, upon undertakings by their solicitors as to strictly limited copying and dissemination, these criteria are likely to result in complex litigation before maturing into a settled body of law. Other provisions in this part include the entitlement of underage witnesses to give evidence from behind a screen, and further refinements on the limitation of cross-examination of a complainant by the accused personally, or by their counsel in respect of prior sexual experience. Part 7 of the Act further refines the jurisdictional

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Summer 2017 dsba.ie

Criminal Law

provisions of Irish law whereby offences against “a child” (being a person under 18) of a sexual nature, even if committed abroad, may be tried in Ireland as though they had been committed here. The original 1996 legislation in this regard is amended to a significant extent, in that a child is redefined as a person under 18, as opposed to 17 in the earlier Act. As will be seen below, this contributes to an overall uncertainty in our law, although doubtless this particular change is driven by a European aim for consistency. Part 8, “Miscellaneous” recreates and tightens the old statutory offence outlawed in recent years by the High Court for vagueness and uncertainty, of indecent exposure, and additionally criminalises sexual acts or “offensive conduct of a sexual nature” in a public place. Apart from the unclear terminology of the latter, it is hard to find fault with the intention of the Oireachtas in that regard. Not yet commenced, and likely to prove difficult in practice is a new proposal for the making of “Harassment Orders” against persons convicted, in respect of their victims. While not especially controversial in principle, the process is novel and the failure to commence it is entirely understandable. Rather more importantly, and the only piece of the Act to gain any publicity, is an attempt to codify the concept of “consent” – a minefield of its own, which is set out in S.48. Apart from the obvious use of force, consent is now to be vitiated by sleep or unconsciousness, physical disability, mistaken identity, and of course, trickiest of all, incapacity due to the effect of alcohol or some other drug, among others. In general, much of this Act is well-intentioned and one could hardly cavil at the notion of providing additional protections for children. But there are very real problems with our sexual offences legislation, and this Act is proof of the pudding. Take for example, the definition of a “child”. In this one Act a child in S.3 is a person under 18; in S.4 is a person under 15; and in S.5 is a person under 17.

All of the relevant offences are of a serious nature and there is no obvious logic driving the distinctions. It may be trite to suggest that the law should be clear and accessible, but in the area of sexual offending and legislation to outlaw and control it, the legislature has long lost its way. Citizens commonly speak of an “age of consent” – how surprised they would be to learn that we don’t have one. We have only certain acts that are lawful with some sexual partners, and not with others, dependent on an age that varies with whatever statutory provision is in play, and with penalties that might vary with the gender of one’s partner. The authors, both experienced criminal lawyers, were stunned to learn recently, in researching advices for a client, that some sexual acts with a 17-year-old were lawful while sitting in one’s living room, but unlawful after driving in a car (see S.3 of the Criminal Law (Human Trafficking) Act, 2008). There are now in force at least ten major statutes concerned with sexual offending with substantial overlap, and an extraordinary plethora of offences, penalties and consequential orders. Along the way, it should be noted, it took the Supreme Court in DPP v Maher, decided only last year, to rule finally on what was the correct penalty for historical offences of certain types of commonly prosecuted indecent assault. Three senior judges in the Court of Appeal had got it wrong. By way of comparison, a single Act, with only minor amendments since passage in 2001, governs theft and almost all offences of dishonesty. Non-fatal assaults require only the 1997 Act, criminal damage the 1991 Act, and drugs offences the 1977 Act with occasional amendments. The lawmakers appear to be completely blind to the confusion that is created by piecemeal change and accretion, and clearly nobody in the Department of Justice has to deal with the reality on the ground of the products of their efforts. A new single Act, dealing with all aspects of sexual offending, is urgently needed. P

The authors, both experienced criminal lawyers, were stunned to learn recently, in researching advices for a client, that some sexual acts with a 17-year-old were lawful while sitting in one’s living room, but unlawful after driving in a car

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Counting the Cost For in excess of 60 years Behan & Associates has provided a comprehensive professional legal costs accountancy service to legal practitioners, state agencies, insurance companies and the business community. In April 2017, Paul Behan was appointed as Taxing Master of the High Court. Paul is a worthy recipient of the honour of becoming only the second legal costs accountant in the history of the State to be appointed as Taxing Master. He has a wealth of experience having been involved in the profession since the late 1970s until his retirement from practice in 2011. Julie Doyle met up with the new Taxing Master of the High Court Paul, congratulations on your appointment to the role of Taxing Master of the High Court. Can you tell us a little about your background, where you grew up and what drove you to choose a career as a legal cost accountant? Firstly, thank you very much for the congratulations. I am very conscious of the history and responsibilities that go with the office. I suppose it could be said that I was born and bred into the career. I recall as a child my father dictating into his machine in his office at home from a very young age. There were always pleadings and legal books and papers around the house. I grew up beside the Phoenix Park on the Navan Road in Dublin. I initially joined my father in his practice but after a few months, he thought (and rightly so) that I needed to get some practical experience. I was dispatched to work as a law clerk in the Dublin firm of solicitors, Hugh J O’Hagan Ward & Co, where I gained great practical experience of legal practice and procedure. It was a great background and I learned a lot, including compiling briefs, attending counsel and filing documents. All of this was valuable as it gave me a comprehension of the mechanics of practice and procedure. I returned to my father’s practice and we worked together in one form or another until his retirement. When did you qualify and where did you commence your career? In those days you didn’t qualify as anything! You just gained your experience and eventually when matters became more formalised, the Institute of Legal Costs Accountants was formed and an education and training structure was put in place. I was a founder member and

committee member and later secretary of the Institute. I have an LLB from Trinity College Dublin and I am a fellow of the Institute of Legal Costs Accountants and a fellow of the Chartered Institute of Arbitrators. What was your most memorable moment in practice? My most memorable time in practice is not really defined in any one case or moment but I would rather say it is the relationships that I built and developed and which I have still maintained with some amazing solicitors, barristers and people right across the spectrum of the law. What do you find is the most intriguing aspect of legal cost accountancy? That is hard to say. But I see it as completing a complex jigsaw. I think it requires a person with a particular set of skills; to be able to read and comprehend (an ever increasing) mass of documentation, prepare an accurate costs summary and then convince a third-party by skilled advocacy that you are right. It is a specialised skill. It is often missed that this will require a thorough knowledge of the file and all its steps, not only in order to argue about the solicitor’s costs but those of counsel, expert and fact witnesses. These sums can be large either cumulatively or individually, so the responsibility is a heavy one. I also like to see how the picture emerges and to watch a case develop. I enjoy the strategy. Who has had the most influence on your career and why? Unquestionably, my father (Tony Behan). He is an exceptional man and is still interested in all aspects of the law. He and I were not only father and son, we were business partners and are above all, best friends. He asks and inquires about everything and everyone. He is 85 now and thankfully is still fresh and alert and reads avidly. He was delighted that I received the appointment and he

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Summer 2017 dsba.ie Julie Doyle is an associate at Beachamps Solicitors. She is a member of the DSBA’s Parchment Committee

Interview

My most memorable time in practice is not really defined in any one case or moment but I would rather say it is the relationships that I built and developed and which I have still maintained with some amazing solicitors, barristers and people right across the spectrum of the law

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Photography: Bryan Meade

I believe that as a matter of confidence it is essential to have an effective independent mechanism, applying the rule of law

loves to hear about the daily trials and tribulations. The process of taxation plays a very significant and dominant role in maintaining the status quo and consequent confidence in the legal system. What do you believe are the strengths of the role of Taxing Master? I do not necessarily think that it does play a dominant role, nor do I think that it should. It is a significant role but the real benefit of the system is that it provides checks and balances. It is of note that the majority of solicitors either agree costs with their clients or with the opposing sides. The process of taxation is usually taken up as a last resort. However, it is an essential process in the event of a dispute either as between a solicitor and client or as between two or more parties. I believe that as a matter of confidence it is essential to have an effective independent mechanism, applying the rule of law. Whilst it would be difficult for me to say what are the strengths of the role of the Taxing Master, having just taken up the position, I believe that it is an essential service for litigants and the profession in general. Solicitors are unique in that there are few other professions which are as highly regulated in terms of their remuneration. Solicitors’ charges are subject to scrutiny not only by clients but by thirdparties and if necessary, by the High Court on review and as recently arose by the Court of Appeal and by the Supreme Court. In June 2016 the Court of Appeal handed down the landmark judgement in the case of Isabelle Sheehan (an infant suing by her mother and next friend, Catherine Sheehan) v David Corr. Cregan J gave a decision in that case which took issue with the format of the traditional costs accountant’s bill used for taxation. What practical effect has this had? That case was appealed to the Supreme Court – what was the recent outcome? The Supreme Court concluded that the methodology and the codified conduct with the superior court rules

was the correct manner in which to conduct taxations of costs. I have only speedily read the judgement due to my own court lists which are busy at the moment. It decided that requiring solicitors and barristers to be paid only on the basis of time recorded is inconsistent with the rules of court. I agree with this as first, time of itself is one thing it is how that time was spent and how effectively it was spent, is the essential thing to analyse. The court also made some general comments regarding a modification of the existing rules which I imagine will follow when the Legal Services Regulation Act and the new system of adjudication is established. In April 2017 a direction issued from the President of the High Court, Peter Kelly for payment on account of costs pending taxation. Will this have a practical effect on assisting with the delays in taxation of costs? I see nothing wrong in principle with this. I would point out that appointment of a second Taxing Master has helped to eradicate delays. Whilst the Legal Costs Adjudicator’s Office will be established shortly, do you believe there is still a need for alternative dispute resolution in the legal costs world? ADR has its place and I am an advocate for it in certain cases. There is provision in the LSRA at s 156(1) that the Legal Costs Adjudicator can invite the parties to engage in mediation. This is a welcome addition but I believe also, that in cases where the amounts involved are large or there is mistrust between the parties, ADR is hardly practicable. How will the office of the Legal Costs Adjudicator provide a much more transparent and user-friendly taxation/assessment regime for costs to the benefit of clients and practitioners? I think that it should. The maintenance of the register of determinations and decisions pursuant to s 140 should be of great benefit. It is proposed that this will be available on the court’s website pursuant to s 140 (8) P

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Summer 2017 dsba.ie Marissa O’Keeffe is an associate solicitor with St John Solicitors. She is a member of the panel of mediators and adjudicators appointed by the RTB and a member of the Property Committee of the DSBA

Landlord and Tenant

Launch of Revised DSBA Residential Tenancies Agreement The DSBA has revised its Residential Tenancies Agreement (2017 edition) as a precedent for the profession. Marissa O’Keeffe reports on its recent launch and what the newly launched Residential Tenancies Agreement contains for landlords and tenants

T

he Property Committee of the DSBA recently launched the Residential Tenancies Agreement (2017 edition) and Notes on Completion of the agreement at a seminar held in the Radisson Hotel on 8th June 2017. The Residential Tenancies Agreement and Notes on Completion are available for purchase on a CD from the DSBA (€195 + VAT). The Notes on Completion of the Residential Tenancies Agreement contain a brief summary of some of the most significant legislative provisions affecting residential tenancies. The seminar was a great success and was well attended. The committee would like to express its gratitude to the valuable contributions given by each of the speakers: namely Eoghan Cole, BL; Kathryn Ward, Assistant Director with the RTB; Seána Glennon of Eversheds Sutherland Solicitors; as well as Ethna Ryan of Partners at Law and Ronan McLoughlin, Chair of Gallagher Shatter for their contributions to the Residential Tenancies Agreement and Notes on Completion. The Residential Tenancies Agreement has been revised since the most recent edition that issued by the DSBA in 2009. The purpose of the current revision was to take account of the changes in the law brought about by the Residential Tenancies (Amendment) Act, 2015 (“the 2015 Act”); the Planning and Development (Housing) and Residential Tenancies Act, 2016 (“the 2016 Act”); the Housing (Standards for Rented Houses) Regulations 2017 S.I. No. 17 of 2017 (“the 2017 Regulations”) due to come into force from 1 July 2017 as well as changes to the Equal Status Acts 2000-2015. Practitioners’ attention is drawn to the fact that the Law Reform Commission has prepared a consolidated version of the Residential Tenancies Acts 2004–2016 (collectively “the Acts”) available on its website. By way of brief summary, the 2015 Act was enacted on 4 December 2015 and the 2016 Act was enacted on 23 December 2016. The provisions of both of the Acts commenced on a phased basis, some of which have yet to be commenced. The 2015 Act introduced a number of extensive reforms including renaming of the Private Residential

Tenancies Board to the Residential Tenancies Board (RTB) following the addition of tenancies with approved housing bodies to the remit of the RTB. The 2015 Act introduced rent certainty measures by imposing the extension of the duration between rent reviews from 12 months to 24 months until 3 December 2019 as well as extending the notice period before which a valid rent review can take effect from 28 days to 90 days. When seeking to review a rent, a landlord is obliged to provide three comparable properties as examples to demonstrate market rent in that area. The 2016 Act introduced rent predictability measures in certain areas known as Rent Pressure Zones (RPZs). There are currently 19 areas in total so far which have been designated as RPZs by the Minister for Housing, Planning, Community and Local Government. The frequency within which a tenancy of a dwelling within an RPZ may be reviewed is 12 months as opposed to 24 months. The rent may be increased in an RPZ, but only by a maximum of 4% annually. For new tenancies a landlord is required to provide three pieces of information to a tenant at the commencement of the tenancy: 1. The amount of the rent that was last set under a tenancy for that dwelling; 2. The date that rent was set; and 3. A statement as to how the rent set under the tenancy of the dwelling has been calculated, having regard to the rent pressure zone formula, R x (1 + 0.04 x T/M) • R is the amount of rent last set under a tenancy for the dwelling (the current rent). • T is the number of months between the date the current rent came into effect and the date the new rent amount will come into effect. • M is either 24 (existing tenancies) or 12 (new tenancies). A review is only permitted 24 months after the tenancy came into existence or 24 months from the date the rent was last set. In this instance M = 24. The initial rent review after the 24-month period is subject to a maximum rent increase of 4%. the Parchment 17

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This amounts to 2% per annum applied pro-rata for the period since the rent was last increased. Following on from this initial review after 24 months, a landlord is then entitled to review the rent every 12 months. The requirement that rent cannot be set at more than the market rate as well as the requirement to provide three comparable properties as examples to demonstrate market rent in that area still apply to a tenancy within an RPZ. If a property in a RPZ is new to the market and it has not been let at any time during the previous two years or it has undergone substantial change, then it will be exempt from the rent predictability measures. According to the RTB a ‘substantial change’ must be a significant change to the dwelling resulting in increased market value of the tenancy. The RTB has created an online calculator for tenancies in an RPZ which firstly identifies whether a dwelling is within an RPZ by requesting that the full address or Eircode of the dwelling is entered. The 2015 Act also introduced changes to the documentation required for the valid termination of a tenancy as well as changes to the notices’ periods. In addition to the requirements for a valid notice of termination, the 2015 Act stipulates that in certain circumstances a statement or statutory declaration must also be served in tandem with the notice of termination. The RTB has created a sample notice of rent review, a number of sample notices of termination as well as the accompanying statements or statutory declarations (where appropriate) for guidance purposes on its website. Whilst the samples produced by the RTB are helpful, it is nevertheless advisable 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 (if required) is properly drafted. The 2016 Act also brought about changes to security of tenure for tenants. Once a tenant has remained in occupation of a dwelling for a period of six months he or she acquires the benefit of what is referred to in the Acts as a Part 4 tenancy. A Part 4 tenancy previously entitled a tenant to remain in occupation for a period of four years. However, this has now been extended to six years by the 2016 Act. The changes will apply to all tenancies created after 24 December 2016 which includes a further Part 4 tenancy that comes into existence on or after 24 December 2016. The 2016 Act also removed the ability for the landlord to terminate within the first six months of a second Part 4 tenancy or further Part 4 tenancy. This means that the only time in which a landlord can terminate a tenancy for no reason is within the first six months of a letting, subject to the inclusion of the break clause in the tenancy agreement. Where prior consent in writing to the letting of a property is a condition of a landlord’s mortgage, such consent will need to be procured and a tenant’s attention drawn to this in the revised Residential Tenancies Agreement. Care should also be taken to ensure a lending institution is notified of the duration of the tenancy if mortgage conditions place any restrictions on the duration of tenancies, bearing in mind the changes to security of tenure outlined above.

Once a Part 4 tenancy comes into existence it can only be terminated upon the grounds provided for in Section 34 and Section 35 of the 2004 Act (as amended). In addition, if a landlord and tenant enter a fixed-term tenancy agreement that does not include a break option, then the tenancy cannot be terminated by a landlord on the grounds provided for in Sections 34 and 35 of the 2004 Act (as amended) until after the fixed term expires. A landlord can only terminate a tenancy for no reason within the first six months of the tenancy, provided the agreement contains a break clause allowing it to be so terminated. Therefore, an optional break clause is provided for in the updated agreement in favour of a landlord. When a break clause is provided for in a tenancy agreement, Part 4 tenancy rights run side by side with the provisions of the tenancy agreement. Therefore, if a landlord seeks to terminate a tenancy agreement after the initial period of six months, then he or she, in seeking to rely on the break clause must also have regard to the provisions in Sections 34 and 35 of the 2004 Act (as amended) in order to validly terminate the tenancy. Since 1 January 2016, the Equality (Miscellaneous Provisions) Act 2015 introduced a new discriminatory ground – housing assistance. A landlord cannot discriminate against a tenant or potential tenant because they are in receipt of rent supplement or any other social welfare payment. An advertisement for the letting of a dwelling cannot exclude a potential tenant on the grounds that they are in receipt of rent supplement. Thus the Equal Status Acts 2000-2015 protect against discrimination in relation to the provision of accommodation on the grounds of gender, civil status, family status, age, race, religion, disability, sexual orientation, membership of the Traveller community and housing assistance. The Housing (Standards for Rented Houses) Regulations 2017 will come into effect from 1 July 2017, following which the 2008 and 2009 regulations will be revoked. The 2017 regulations will require landlords of rented houses (including flats and maisonettes), with some exceptions, to ensure that such houses meet certain minimum standards. The 2017 regulations will, in addition to restating some of the existing minimum standards as set out in the 2008 and 2009 regulations, will introduce new requirements, namely, landlords will need: • To ensure that certain windows that are located above a height of more than 1,400mm are fitted with safety restrictors in order to prevent falls (Article 4); • To provide a permanently fixed heater in each bathroom/shower room as well as habitable rooms and ensure proper ventilation and maintenance of those heaters. Those appliances will need to be maintained in a safe condition and good working order and repair (Article 6); • To provide carbon monoxide detectors and alarms in suitably located positions in the dwelling (Article 6); • Provide sufficient information to tenants about the fixed building services, appliances and their routine maintenance so that tenants can operate them correctly (Article 13). P

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Litigation Funding

– Get by with a Little Help from Your Friends Third party financial backing of litigation is an important feature of legal processes internationally, particularly in large scale and multi-claimant actions. Specialist litigation funding has developed into a cottage industry in many jurisdictions. Joe O’Malley shines the spotlight on the position here in Ireland in light of a recent Supreme Court judgement

I

n June 2017 Sky News announced that British hauliers had secured backing for a multi-billion pound legal claim against five of the world’s biggest vehicle manufacturers following a price fixing fine imposed last year by the European Commission. It was reported that the specialist litigation funder had amassed a multi-million pound war chest to see the claims through to their conclusion. Litigation funding is a term that can embrace conditional fee agreements as well as third-party funding. The purpose of this piece is to examine the area thirdparty funding which has undergone very recent analysis and clarification by the Supreme Court in Persona Digital Telephony Limited and Sigma Wireless Networks Limited v The Minister for Public Enterprise and Others [2017] IESC 27. Before analysing this important judgement and assessing what it means for third-party litigation funding in Ireland, it is instructive to look at the public policy considerations which are not just unique to our society but which prevail in all modern societies. Lord Neuberger recently delivered a very insightful paper entitled From Barretory, Maintenance and Champerty to Litigation Funding in which he maintained that the public policy rationale regarding maintenance and champerty has turned full circle. He noted that the prohibition which existed in the UK in relation to maintenance and champerty was originally justifiable in order to secure the development of an inclusive, pluralist society governed by the rule of law. However, he argued that now it might be said that the exact reverse of prohibition is justified for the same reasons. He

referred to the work of Acemoglu and Robinson in their celebrated book, Why Nations Fail, which contends that in order for a State to remain inclusive and promote a higher standard of living for all of its citizens, it must not just express a commitment to the rule of law but it must provide effective mechanisms through which its citizens have genuine access to the courts. It is only in that situation that a society can begin to have equality before the law and hold the powerful to account and render the citizens’ legal rights a true reality, rather than meaningless words. Neuberger said that where significant groups of citizens are financially unable to gain access to justice, one of the most important means by which inclusive societies prosper, is missing or at best weakened. He said that if all members of society cannot gain genuine access to the courts, then the possibility exists for society to become exploitative, as some elements take advantage of the fact that they can ignore the law with relative impunity. Neuberger was also mindful of the risks in coming to this view. He sounded a warning that there remained a risk that litigation funding could be used as a means to promote unmeritorious claims in the expectation that once the opposing side was aware of the existence of third-party funding, they are more likely to be brought to settle in order to buy off the claim. Interestingly, he observed an important distinction between conditional fee arrangements and third-party funding, whereby in conditional fee arrangements a conflict of interest may arise for the lawyers who have a financial stake in the outcome of the litigation concerned, whereas third-party litigation funding did not give rise to such problems.

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Summer 2017 dsba.ie Joe O’Malley is partner and head of the Commercial Litigation and Dispute Resolution team at Hayes Solicitors. He is a council member of the DSBA

At the heart of this debate is access to justice and the aspiration that every citizen should be entitled to bring his or her case to court. As Lord Brougham said in the UK Parliament about 200 years ago with remarkable prescience: “Better something of justice than nothing”. Against this backdrop, Persona brought an application before the High Court in 2015 seeking a declaration pursuant to the inherent jurisdiction of the court and/ or Order 34 (RSC) approving it entering into a litigation funding arrangement with Harbour Fund III, L.P. The funding arrangement provided for financial backing for Persona’s legal costs and its purchase of adverse cost insurance. The State defendants submitted that maintenance and champerty are criminal offences as well as torts and common law offences which have had statutory recognition for hundreds of years and the State relied upon the Maintenance and Embracery Act 1634, which had been retained by the Statute Law Revision Act 2007. Therefore, the State maintained that the torts of maintenance and champerty were still extant and prohibited a funding arrangement, as at issue in this case. In the High Court, Ms Justice Donnelly held in favour of the State and decided that the relevant authorities demonstrated a prohibition on an entity funding litigation in which it had no independent or bona fide interest in return for a share of the profits. Persona made a “leapfrog appeal” to the Supreme Court which delivered judgment last month. In the leading judgment, the Chief Justice confirmed that the torts and crimes of maintenance and champerty have been retained in Ireland, pursuant to the Statute

of Conspiracy (Maintenance and Champerty) of an unknown date in the 14th century, the Maintenance and Embracery Act 1540 and the Maintenance and Embracery Act 1634. She defined maintenance as the giving of assistance by a third party who has no interest in the litigation to a party in litigation. She defined champerty as where the third party who is giving assistance will receive a share of the litigation proceeds. While the law on this issue had ancient roots, the court was referred to a number of more recent cases regarding maintenance and champerty. In particular, the court noted that in Fraser v Buckley [1996] 1.I.R. 1, the Supreme Court held that the agreement in issue was champertous and unenforceable in law where the plaintiffs had entered into an agreement with the defendants in consideration of the defendants giving to the plaintiffs one third of any sum they might inherit. The defendants ultimately obtained a sum of more than US$750,000 and did not pay the plaintiffs the one third share on the basis that the agreement was unenforceable as being champertous. The court held that the agreement was champertous and unenforceable in Irish law. More recently in Thema International Fund v HSBC Institutional Trust Services (Ireland) [2011] 3 I.R 654, Justice Clarke found that the funder had a significant connection with the plaintiff that would take the funding outside the scope of maintenance and/or champerty. He stated: “A third-party funder who is not guilty of champerty (i.e. who has the sort of legitimate interest in the case identified in the champerty jurisprudence) is, in my view, in a different situation. They are, even if only indirectly, already involved in

Litigation

The Chief Justice confirmed that the torts and crimes of maintenance and champerty have been retained in Ireland, pursuant to the Statutory of Conspiracy (Maintenance and Champerty) of an unknown date in the 14th century the Parchment 21

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There is a long history at the Bar and amongst solicitors, of taking cases on a “no foal no fee” basis. Many of those important cases have been taken in such circumstances. Or, perhaps an alternative route may be found whereby the litigation would cost less

the litigation. Any company which lacks funds always has the possibility that its shareholders (or its creditors) may choose to provide further funding for a whole range of reasons not confined to potential litigation. Commercial judgment will often lead to parties with a direct interest in a particular enterprise investing further sums. There is therefore, in my view, a substantial difference between a party who already has an indirect link to the impecunious party and who has therefore, already got an indirect interest in the relevant litigation on the one hand, and a party with no such prior link who simply buys into the litigation on the other hand. A party in the position of [the funder] must be aware that shareholders in or others with an indirect interest in Thema may well chose to fund … to enable it to pursue litigation which is in Thema’s interest but which will also, potentially, indirectly benefit them by increasing the value of the shareholding in Thema or permitting Thema to pay its lawful obligations”. However, in the Persona case, the funder was held not have a sufficient connection with the plaintiff and the single issue which arose was whether a professional funding agreement was contrary to public policy and, therefore, champertous. The court had particular regard to the obsolete reasons advanced by Lord Denning in ruling against a third-party funding arrangement in Trepca Mines Limited [No. 2] [1963] CH.199, when he stated: “The reasons why the common law condemns champerty is because the abuses to which it may give rise. The common law fears that the champertous maintainer might be tempted, for his own personal gain, to inflame the damages, to supress evidence, or even to suborn witnesses. These fears may be exaggerated; but be that so or not, the law for centuries had declared champerty to be unlawful and we cannot do otherwise than enforce the law”. The court noted that this statement was approved by Mr Justice Lynch in O’Keeffe v Scales [1998] 1 I.R. 290, when he held “a person who assists another to maintain or defend proceedings without having a bona fide interest independent of that other person in the prosecution or defence of those proceedings acts unlawfully and contrary to public policy and cannot enforce an agreement with that other person for any form of benefit.”.

In Persona, the court also recognised the recent judgment of Mr Justice Hogan in Greenclean Waste Management Limited v Maurice Leahy practising under the style and title of Maurice Leahy & Co Solicitors [No.2] [2014] IEHC 314, when the judge considered that the laws of maintenance and champerty must be viewed in accordance with modern ideas of property. In this case, Justice Hogan upheld the legality of After the Event (ATE) legal cost insurance. Ultimately, Thema and Greenclean were distinguished from the facts in Persona, whereby the Persona case involved an investment agreement by an unrelated third party with no legitimate interest in Persona. Accordingly, the court held that the investment agreement constituted a champertous agreement and thus the agreement was unlawful. In the conclusions of the Chief Justice, she stated her concern that if the case does not proceed, then the defendants and the third party (Michael Lowry TD) who vigorously opposed the funding arrangement, would be the beneficiaries of this ruling but in raising this concern, she offered an unconvincing option which throws the problem at practitioners when she stated: “There is a long history at the Bar and amongst solicitors, of taking cases on a “no foal no fee” basis. Many of those important cases have been taken in such circumstances. Or, perhaps an alternative route may be found whereby the litigation would cost less.”. But in circumstances where our laws also prohibit practitioners from sharing the fruits of any litigation with their client (admittedly with some justification), it is difficult to see how this suggestion can be regarded as a panacea. The issue of third-party funding litigation arises because of the cost of accessing justice. As Jeremy Bentham famously said in Defence of Usury; “so long as the expenses of seeking relief at law stands on its present footing (which is to say, it is expensive), the purpose of seeking that relief (i.e. funding), will of itself, independently of every other, afford sufficient ground for allowing any man, or every man, to borrow money on any terms on which he can obtain it”. For him, access to the courts is a right which the State should not stand in the way of. P

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BEHAN

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Circuit Court Rule Family Law Changes Keith Walsh looks at the changes which came into effect on 14th June 2017 and highlights eight important points to note for family law practitioners on the Dublin Circuit

1. S.I. No. 207 of 2017 Circuit Court Rules (Family Law) 2017 came into operation on 14th June 2017, the first day of the Trinity Law term. The new Circuit Court rules replace in their entirety the old Order 59 and consolidates and amends Order 59. Some existing forms were amended and two new forms for family law were added to the rules. 2. Update your precedent Family Law Civil Bill amended Form 2N contained in the new rules changes the first page of the Civil Bill and this new Civil Bill format (simply some additional paragraphs and wording) must be used after 14 June 2017. Some Circuit Court offices (including Dublin) have stopped accepting the ‘old’ format after 14th June. 3. New process to permit ruling of orders on consent - Order 59 r.35 The Circuit Court rules previously did not contain any provision which permitted the ruling of consent terms in family law matters and a practice had developed where a notice of motion was issued which simply annexed the consent terms and was given a return date before a judge of the Circuit Family Court. This process has been formalised and the application is described in the new rules of the Circuit Court as for an “order in agreed terms”. The new procedure requires practitioners to prepare: • Notice of motion to rule the terms; • Grounding affidavit exhibiting the agreed terms; • Affidavit or updated affidavit of means of each party

sworn not earlier than six months before the date on which the motion is issued; • Where one of the two parties does not intend to attend at the hearing/ruling of the terms, then their agreement or consent must be verified on affidavit or otherwise verified or authenticated in such a manner as the court decides; • It would also be advisable for practitioners to have an approved draft pension adjustment order with all proofs completed available to the court when ruling and this may be required in the new rules. 4. Improved listing of case progressions to avoid delays (Dublin only) Order 59 r.65 The case progression rules have been revised to provide, in respect of the Dublin Circuit only, for the listing of the case progression hearing at the next available date in the following circumstances: 1. by summons where both parties have certified completion of the pre-case progression steps and lodged a joint certificate of completion [new form 37W] see below]. 2. by summons at the request of one party who has certified completion of the pre-case progression steps [new form 37W] and who has given the opposing party not less than 14 days’ written notice of completion of the pre-case progression steps and of his/her intention to apply for a case progression hearing; 3. in default of a listing in the above circumstances on a date which is not later than six months after the date

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Summer 2017 dsba.ie Keith Walsh is principal of Keith Walsh Solicitors and chairman of the Law Society of Ireland’s Child and Family Law Committee

for filing by the respondent of his defence, his/her affidavit of means and (as appropriate) affidavit of welfare, for an explanation of the delay in proceeding with case progression. The County Registrar is given an additional sanction of being able to strike out the proceedings, [the normal procedure will continue to apply outside Dublin, i.e. the case is automatically listed for case progression hearing not later than 70 days after the filing of the defence]. 4. Improved listing for hearing when in case progression (Dublin only) Order 59 r.74 Where during case progression, both parties, not less than seven weeks before an adjourned case progression hearing, certify completion of both the pre-case progression steps and full compliance with all orders made and directions given in case progression, the proceedings will be listed before the County Registrar to fix a date for hearing. The parties must lodge two joint documents – the compliance in full with all pre case progression steps and all orders made [form 37W] and a joint certificate of readiness [form 37X] with copy of all orders made in case progression annexed thereto. The County Registrar ‘shall, save in exceptional circumstances, to be identified in any order made fix a date for the hearing by the court of the proceedings and vacate any adjourned date for the case progression hearing’. 5. Notice to fix a date for trial may bypass Case Progression Order (Dublin only) 59 r.38

Family Law

Where both parties agree that case progression can be bypassed then a notice and the case will be listed in the next list to fix dates without the need for case progression. 6. Date from which one year’s prior vouching must be made will be from the date of the Civil Bill rather than the date of filing of the defence and respondent’s affidavit of means. 7. Civil Bill must contain basis of jurisdiction on its face where neither party resides in the jurisdiction. O.59.4.2A e.g. if jurisdiction is claimed based on one party working in the circuit then this must be clearly set out in the Civil Bill or originating motion and details provided. 8. Why were the Circuit Court rules changed? The changes to the Circuit Court rules were recommended by the Consultative Group set up in 2016 to advise the Circuit Court Rules Committee on changes to the family law aspects of the Circuit Court rules. Composition of the Consultative Group: Chair: Ms Justice Sarah Berkeley; the County Registrar for Dublin Ms Rita Considine; Noel Rubotham and Liz Hughes, Courts Service; legal advisor to the Circuit Court Rules Committee, Sean Barton of McCann Fitzgerald; Law Society nominees Aidan Reynolds, Keith Walsh; FLA nominees Catherine White, BL, Alan Finnerty, Gore Grimes; Bar Council nominee, Catherine Forde, BL and DSBA nominee Peter Quinn, Sheridan Quinn. P the Parchment 25

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Seesaw Awards in Defamation A number of judgments have been handed down recently which relate to the much discussed topic, in legal circles at least, of the size of damages awards in defamation. Matthew Austin reports on judgments recently handed down in the High Court Christie v TV3 In this case the High Court had awarded damages to Mr Christie, a solicitor, in the sum of €140,000. The case concerned an unintentional defamation of Mr Christie by TV3. Mr Christie had represented disgraced solicitor Thomas Byrne in the course of a long running criminal trial in 2013. During the course of the trial, a TV3 news bulletin broadcast footage of Mr Christie alone outside the Criminal Courts of Justice accompanied by the following dialogue: “The jury in the trial of solicitor Thomas Byrne will resume its deliberations tomorrow morning. It has already spent several hours considering its verdict. The 23-day trial ended this morning with a summingup from Judge Patrick McCartan. Thomas Byrne has pleaded not guilty to 50 counts of theft, forgery, using forged documents and deception. The total amount involved is almost €52m.” In his summary of the case in the Court of Appeal judgment, Mr Justice Hogan stated that it seemed clear that the footage showed Mr Christie rather than Mr Byrne and this was as a result of human error. Mr Christie swiftly took action following the broadcast and instructed a solicitor to write to TV3 which accepted that a mistake had been made and offered its apologies to Mr Christie. They also offered to broadcast a clarification. Shortly thereafter TV3 broadcast a clarification and apology, although the terms of that apology had not been agreed by either Mr Christie or his solicitor. Mr Christie initiated proceedings in defamation. In his judgment, Mr Justice Hogan reviewed the level of damages awarded by the High Court. He discussed the need to balance the two potentially competing constitutional rights, namely the protection of the right to a good name and the right to free speech and expression. In determining that the award of damages should be reduced Mr Justice Hogan took account of all of the relevant factors in the case which he stated to be as follows: • A once-off nine second broadcast. • The fact that the plaintiff was not named. • The very limited range of viewers who might think that the news item referred to Mr Christie.

• The absence of any animus towards Mr Christie. • The fact that it was plainly a case of mistaken identity. In all of these circumstances Mr Justice Hogan determined that the appropriate starting point in determining the damages was €60,000, a figure which he felt to be proportionate in the circumstances. Mr Justice Hogan then went on to consider what reduction should be made from this figure of €60,000 in light of the fact that an offer of amends had been made. He decided that TV3 should receive a discount of 40% in recognition of the swiftness of the apology and the general prominence given to the apology. He went on to state that the level of discount which might be applied in cases where an offer of amends has been made, but where the apology is grudging or not given appropriate prominence will be a lot less than where the apology is fulsome, generous and given the prominence which it deserves. The upshot of Mr Justice Hogan’s analysis of both the appropriate level of damages in defamation claims and also the appropriate discount to be applied where an offer of amends has been made was that the High Court award of €140,000 was reduced to an award of €36,000.

Nolan v Sunday Newspapers Limited The judgment in Nolan was handed down by Mr Justice O’Connor approximately three weeks after the Court of Appeal judgment in Christie. Nolan concerned articles and photos in the Sunday World in 2012 and 2013. As indicated in the judgment the plaintiff was characterised by the 2012 publication as a principal organiser of orgies in the State with a lurking undertone of criminality. In relation to the 2013 publication the court found that a reasonable person who glanced at the content was likely to form the view that the plaintiff was immersed in economic activities involving the provision of sexual services or activities. The defendant did not plead or rely on the defence of truth. Mr Justice O’Connor accepted the plaintiff ’s evidence that he attended four parties with his then partner over a period of 18 months, but also that the plaintiff found the parties distasteful before ceasing all interest in them. Mr Justice O’Connor described

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Summer 2017 dsba.ie Matthew Austin is a partner in the Commercial and Business department at Hayes Solicitors

the effects of the 2012 publication: the plaintiff lost access to his children and their names were changed when they moved school following the 2012 publication, the plaintiff was shunned by extended family and ostracised within his social and sporting circles. The judge rejected various defences including that certain of the published content was incapable of bearing the pleaded defamatory meaning. He described the plea that the publication was on a matter of public interest as “vacuous”. Of his own volition Mr Justice O’Connor conducted an analysis of the various awards made by juries in defamation cases as well as the awards made following appeal, including the award in Christie. Nolan was heard and determined without a jury but it is evident from the judgment that Judge O’Connor was keen to place himself in the shoes of a juror who might have considered the appropriate level of damages to award in the case. In formulating his award Judge O’Connor placed some reliance on the Supreme Court’s judgment in Leech v Independent Newspapers (Ireland) Ltd [2015] 2 IR 214. He found that the defamation of the plaintiff was very serious. The plaintiff was awarded €250,000 for general damages, €30,000 in aggravated damages and €30,000 in punitive damages, making a total award of €310,000.

Independent Newspapers v Ireland The decision of the European Court of Human Rights (ECHR) in Independent Newspapers v Ireland was handed down on 15 June 2016. The application to the ECHR followed the Supreme Court’s decision in Leech wherein it replaced the High Court’s award of damages to Monica Leech (€1,872,000) with its own award of €1,250,000. The facts of Leech are well known. Leech fell to be determined under the law that applied prior to the commencement of the 2009 Act. Leech had been heard and determined before a jury. The ECHR stated that unreasonably high damages for defamation claims can have a chilling effect on freedom of expression and therefore there must be adequate domestic safeguards so as to avoid disproportionate awards being granted. The ECHR noted the State’s decision to allow for defamation

Litigation

cases to be heard before a jury and endorsed the State’s entitlement to deal with defamation proceedings in that way. However, the ECHR found that the State’s failure to allow for adequate safeguards, in the form of appropriate instructions to the jury on the subject of the quantum of damages that might be awarded, violated the right to freedom of expression. Furthermore, the ECHR found that the Supreme Court failed to give sufficient explanations as to how the replacement award had been calculated. The ECHR dismissed the applicant’s claim for just satisfaction and ordered the State to pay the applicant €20,000. In its concluding remarks the ECHR noted that Leech had been conducted under the legal regime that applied prior to the commencement of the 2009 Act. The ECHR quoted from the judgment of Ms Justice Dunne in the Supreme Court in Leech where she referenced the changes rendered by the 2009 Act which meant that a trial judge could now give more detailed directions to a jury as to the assessment of damages. The ECHR welcomed this development but did not pass comment on the specifics of section 31 of the 2009 Act which is the section dealing with the expanded scope for direction of juries on the assessment of damages.

In his summary it seemed clear that the footage showed Mr Christie rather than Mr Byrne and this was as a result of human error

Conclusion The Court of Appeal, in Christie, has addressed, for the first time at appellate level, the relevant factors in dealing with the appropriate discount to be made in the assessment of damages where an offer of amends, for the purposes of the 2009 Act, has been made. Christie also offers an insight into how the Court of Appeal may deal with future assessments of general damages awards in the context of defamation cases. Nolan is a reminder of the large awards that can still materialise in cases of serious defamation and the possibility for both aggravated and punitive damages to be awarded under the 2009 Act in appropriate circumstances. The effect of Independent Newspapers v Ireland remains to be seen. It is possible that the directions regime for the instruction of juries provided for under the 2009 Act might still fall foul of the ECHR if that court feels that the applicant has been deprived of safeguards sufficient to prevent violations of the Article 10 right to freedom of expression. P the Parchment 27

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Summer 2017 dsba.ie Killian Morris is a partner at AMOSS Solicitors. He is a member of the DSBA’s Parchment committee

Cross Examination

Top of the League Killian Morris meets Law Society President Stuart Gilhooly where they discuss Ched Evans, the Irish Women’s Football team, the PFAI, a certain night in Istanbul as well as the Law Society and legal politics, being a solicitor and everything else

I

t’s something you always wonder about the current Law Society President. How does he find the time? Even before he took office in Blackhall Place last November, I could never understand how he managed to juggle being a busy solicitor with such a central role in both the Law Society and the DSBA, not to mention his award-winning contributions to this magazine or his well publicised involvement as solicitor to the Players’ Football Association of Ireland (PFAI). When I sit down with him in his office close to Harold’s Cross Bridge, it is the first question I ask the 46-year-old from Malahide. “I don’t necessarily know what the answer is. You have to be ruthless about time, you

You have to be ruthless about time, have to be a really good delegator and have great support

have to be a really good delegator and have great support,” he answers. He mentions in particular, his secretary, Allison who has been with him for nine years, as being the person who he can rely on to keep the ‘show on the road’ but he is obviously very grateful to all the staff at HJ Ward & Co who have provided such great support to him since his election as Law Society supremo. Stuart comments that the role of Law Society President is normally more suitable to those in the latter part of their careers, whose workloads have diminished, or where their often larger practices can facilitate them in delegating their work for a year. Of course, that doesn’t seem to apply to Stuart as I can see four neatly stacked piles of client files on his desk awaiting his urgent attention. the Parchment 29

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Yes I feel vindicated now, but if I was to write the article again I would have done it differently. I was the first person outside of Ched’s family who suggested he might be innocent Ultimately he says “it is what you get used to” and he speaks of how he has learned to quickly shift his attention between the different facets of his life. Interestingly, for somebody who clearly enjoys being at the centre of things, Stuart Gilhooly tells me he really enjoys solitude. “I really love sitting on my own with a pint and a newspaper,” which he says is something that not many people know about him. With such a busy life it is understandable how these breaks from the demands and pressures of living in the fast lane of legal and football politics can be so elusive. Clearly the opportunities for “me time” are few and far between while he sits in the Law Society hot seat. It is well known that Stuart is a passionate Liverpool supporter and the memorabilia which adorn the walls of his office are a testament to his love for the beautiful game. Leaving aside his very busy personal injuries practice and his role in the Law Society, football is the thread that runs through almost everything else in which he’s involved. Earlier this year, the Irish Women’s Football team took a stand against the FAI to address the conditions under which they were expected to represent Ireland on the international stage. As solicitor to the PFAI, Stuart Gilhooly became the public face of what was to become one of the most satisfying moments of his career to date. At a press conference on 4 April 2017, the world discovered that the Irish international women’s team were routinely asked to hand back team tracksuits after matches - sometimes having to change in public toilets - as the tracksuits were required for other teams. Within a matter of days, the FAI were forced to give in to the reasonable demands of the players, in what was a very embarrassing episode for the national governing body. The general secretary of the PFAI, Stephen McGuinness, who was away at the time, asked Stuart to take a role in the public relations aspect of what was quickly to become an international news story. Stuart recalls that when the PFAI looked at the problem initially, they knew that this could turn into a big story, but they genuinely believed that the prospect of such a public

embarrassment for the FAI would result in an early compromise. “I couldn’t understand how they would let that happen [the press conference] - the story about the tracksuits that was the headline, but the real story was that the players were losing money playing for their country,” he said. He went on to explain that the women players received no payment at all when playing for Ireland and that some of them (who were working part-time jobs) were losing earnings of up to €5,000 a year because of their commitment to play for their country. This is contrasted with the men’s international team where the players receive €3,000 per match, while earning for the most part between €30,000 and €50,000 per week from their clubs in England. The female players were only looking for €300 per match. Ultimately the players’ demands were met following a lengthy mediation but it seems that this chapter in relations between the FAI and the women’s national team is far from over. Stuart explains that “they still won’t talk to us [the PFAI], I think they were afraid of giving too much power to us and fear that we might get involved in the men’s international game”. When I ask what’s next, Stuart sounds a warning to the FAI: “this ain’t over, it ain’t over at all – not by a long shot”. You get the impression that John Delaney and Co would be well advised to sit up and take notice. While the giving of his time to the PFAI has been principally in the provision of legal advice and representation to players, Stuart has never charged a cent for his services. In what has become a major part of his professional life, and one of the things that he is known most for, Stuart explains how he first became involved in 2003. At the time Shamrock Rovers goalkeeper, Barry Ryan, who had been found with cocaine in his system following a drug test, needed representation at an FAI disciplinary hearing. Stuart ended up doing the job and the PFAI were so impressed with what they saw, he was appointed as the union’s solicitor in 2004 working primarily on disputes and contract negotiations with both League of Ireland clubs and the FAI. He recalls some other highlights during his time with the PFAI including where one

player, Dave Rogers was sacked by Dundalk for lowering his shorts during a match. The player was sent off at the time but it wasn’t until Rogers was listening to the radio in his car the following day, that he heard that he had been sacked by the club. There was no investigation, no disciplinary procedure, not even a discussion with the player before the public announcement. With a set of facts like that, and with Gilhooly on board, there was only going to be one outcome. We agree that it’s hard to believe that professional footballers, who are employees under the eyes of the law, could have been subjected to this sort of treatment. While it seems that this has, in the main, been because professional football in Ireland is not as developed as it is across the water, Stuart feels that this is now changing. “Times are moving on and the football clubs are more aware of their obligations and these types of situations are less common. In fairness to the clubs there is no money in the League of Ireland – they can’t afford the proper management structures that you would get in English clubs, but they are doing their best.” Readers of these pages will know that up to this year, Stuart Gilhooly was the lead journalist for the Parchment tasked with the Cross Examination interview in each edition. When I point out that it must be interesting being the subject of the searching questions for a change, I ask what Stuart Gilhooly would ask Stuart Gilhooly if he had to write the piece? He pauses for a moment. “It has to be Ched,” he says. Ched Evans, a professional footballer with Sheffield United was convicted of raping a 19-year-old woman in 2012. He served half of a five-year sentence and on his release from prison in 2014, there was a very public furore surrounding where, or indeed if, he should be allowed resume his football career. Stuart remembers that he had been watching the story closely at the time and felt that it was unfair that a man who had served his sentence should not be allowed to get on with his life. “When I started writing the article, I read into the history of the trial and then I thought ‘this doesn’t make sense at all; how could he have been found guilty?’” He believed that the circumstances were such that even if Evans had been guilty of the crime, he had served his time and that he didn’t deserve this continued opprobrium. Stuart’s article was published on the PFAI website and immediately went viral because of comments in the article suggesting Ched’s innocence (despite having been convicted) and about the gravity of the offence committed. In the week following its publication

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Summer 2017 dsba.ie

Cross Examination

Photography: Bryan Meade

Stuart was the subject of heavy criticism and at times quite personal abuse. “I got serious abuse [by phone and on social media], I think every swear word that was invented was used about me during those few days. I learned a few new ones!” he explains. While Stuart seems fairly thick skinned about it all, he was particularly annoyed about two UK journalists, writing in the Telegraph, who described him as “seriously dangerous” and who suggested that the Irish Law Society “should sort this guy [Gilhooly] out”. Subsequently, Ched’s conviction was overturned and he was acquitted at a retrial. “Yes I feel vindicated now, but if I was to write the article again I would have done it differently. I was the first person outside of Ched’s family who suggested he might be innocent,” he says. He is disappointed that Evans is still subject to widespread adverse comment notwithstanding his acquittal and he points out that “people to this day are very dismissive of him even though, at the moment, he is going around clubs advising young players about issues surrounding consent on nights out; which is exactly what he should be doing”. While this is a chapter in his story which Stuart now sees as water under the bridge, it is hard to think that it has not affected him. When we later go on to talk about the negative sides to the proliferation of social media, he makes the comment that the controversy has taught him lessons and that he is extremely careful about anything he says on social media these days. All this football chat brings us on to one of Stuart’s greatest memories. Istanbul, Turkey – 25th May 2005, Champions League Final, AC Milan v Liverpool FC. He explains that he and three friends had been going to Liverpool games every year since 1998. “I never thought I would see Liverpool in a Champions League final again. There was no question that we were not going!” So the flights were booked and they were on their way. He recounts the occasion in almost forensic detail from the apparent hopelessness of the situation at halftime (AC Milan were three nil up), the recovery back to three-all, eventually winning the match on penalties and the epic celebrations that followed. Of course, there’s the day job too. Stuart’s legal practice is predominantly focused on personal injuries litigation and he is clearly very passionate about the work that he does for his clients. It is well known that Stuart has been a strong supporter of claimants’ rights, particularly in his advocacy surrounding the establishment and operation of the Injuries Board. The ‘real’ work however, is getting the best for your clients

Stuart Gilhooly at a glance

FAVOURITE SONG Fake Plastic Trees by Radiohead FAVOURITE TV SHOW Mad Men - brilliant writing and character development. Still miss it PERSON YOU WOULD MOST LIKE TO MEET Paul McCartney, musical legend and colossus SPORTING HERO So many. Steven Gerrard in recent years. Loved John McEnroe and Ian Botham as a kid

and Stuart is a very familiar face in the Four Courts on any given day. He recalls one case of which he is particularly proud of the result achieved for his client. He explains that the plaintiff was a special needs assistant who had been assaulted in a classroom resulting in a broken arm. As the case progressed, the injury became chronic and his client developed dystonia/complex regional pain syndrome which left her in a wheelchair and unable to work again. Ultimately, after a number of years Stuart is happy to report that following the hard work in the case, his client secured a seven-figure sum which will make a huge difference to her life. We can all appreciate times when the work we have done as solicitors has made a difference to

somebody’s life and Stuart is no exception. Stuart only has a few months left in his term as Law Society President and I’m surprised to hear that he sees no further involvement for himself in legal politics or the regulation of solicitors’ practice. He has been told that former presidents find it very difficult to adjust to life afterwards. “You go from being the centre of everything to being on the periphery, I have heard this is really hard to deal with and I don’t know whether it will affect me.” While he tells me that he won’t run for Law Society Council again and that the bench does not interest him, you still get the impression that Stuart will inevitably find himself at the centre, or to use football parlance, in the ‘engine room’, of whatever he finds himself doing. P the Parchment 31

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Legal Costs Update Sheehan -v- Corr

The recent Supreme Court ruling in Sheehan -v- Corr has given a huge boost to solicitors and barristers on the legal costs front. Shane O’Donnell summarises the main points of the landmark court decision and provides some other updates from the world of legal costs

A

s most practitioners will be aware, it has been an interesting (albeit frustrating and broadly speaking unsatisfactory) period in terms of the assessment/agreement of legal costs in this jurisdiction. There is little doubt out there that we have entered a sustained period of economic recovery but many will feel that the rising tide of that growth has left legal costs stranded on an island that they have inhabited since the collapse; and the now retired President of the High Court’s pronouncement in the Bourbon case at the time of the collapse with the Troika lurking in the background, that legal costs were at an unsustainably high level. However, there have been a number of very welcome developments in the legal costs sphere over the last number of weeks. To give a brief update, practitioners should be aware of the following: Necessity for billing based on time – Sheehan v Corr – the Court of Appeal’s decision caused huge practical and procedural difficulties by determining that all fees, both solicitors and counsel, must be valued, claimed and assessed pursuant exclusively to time spent/recorded – either contemporaneous or retrospectively prepared estimates. The court’s direction and its onerous and impractical requirements meant that firms faced a further hurdle in so far as the benefit of the doubt no longer existed, when justifying/assessing fees in respect of work that was obviously and properly carried out, but not contemporaneously recorded. The result was that in many ways practitioners had no way to breach an impasse where a paying party made an offer that was significantly less than what the matter would have traditionally taxed at. It was a strange decision from the Court of Appeal as

it placed manifestly unfair requirements on most of the legal profession. There are a very limited number of solicitors’ firms who are fully set up to bill exclusively on time and far fewer barristers than that again. Expecting a sole practitioner in Co Leitrim to bill in the same fashion as one of the top commercial firms simply failed to take into account the diverse nature of firms that exist in this country. Thankfully, common sense has prevailed and in a phenomenally insightful and well written judgement, Laffoy J, the Supreme Court has completely overturned the Court of Appeal direction regarding the preparation of bills of costs and counsels’ fee notes exclusively on time and that the Taxing Master must assess and evaluate each individual time entry that makes up the instruction fee. The highlights of the 75 page ruling can be summarised as follows: • There is no requirement in law that a solicitor or barrister must keep contemporaneous time. While it observes that time is of course useful in explaining how fees were arrived at and charged, the Court of Appeal was wrong to find, by implication, that such a requirement exists. • The old format of party and party bills, used to tax for the past number of decades was not inconsistent with the requirements of Order 99 of the rules. • Legal professionals should endeavour to present bills of costs with supporting evidence which are of greater assistance to the Taxing Master than is prescribed by Order 99 in its existing form. • Comparators, if used properly are a valuable guide in the assessment of fees. • The amount of time expended on a case should not

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Summer 2017 dsba.ie Shane O’Donnell is a legal cost accountant and solicitor working at Flynn & O’Donnell

• •

be elevated above the relevant criteria mandated by Order 99, rule 37 (22) – responsibility, complexity, extent of documentation, etc. The Taxing Master has the power to allow or direct, the production of retrospective reconstruction of time, but such power is discretionary and should be exercised appropriately – as per the judgement. The Taxing Master may or may not allow the involvement/recoverability of the costs of two solicitors dealing with a case. General economic conditions are relevant to the proper assessment of a solicitor’s general instructions fee, or a barrister’s brief fee. The impact of a change in the economic climate on such fees is to be assessed by reference to appropriate evidence. Taxation should not be laborious hearings comparable with the substantive case. The court viewed this as being overly inquisitive and cautious.

The Appointment of a new Taxing Master Paul Behan has been appointed as a replacement for Taxing Master Mulcahy. While the entire legal costs landscape is changing significantly, his appointment can only be welcomed with open arms as this jurisdiction has always needed at the very least, two Taxing Masters working in tandem to ensure consistency and some degree of certainty. He has been out of the business for the last number of years but was a hugely respected and experienced cost accountant prior to retiring from Behan &

Legal Costs

Associates. So far he has indicated a willingness to get on with business and get cases heard and determined expeditiously. His initial rulings are indicative that his valuations will broadly be in line with Master O’Neill providing some welcome consistency to the taxation process. The fact that we are now no longer dealing with piecemeal taxations, multiple taxation hearings on the same case, delays getting judgements/certificates, means that business should return to normal on taxation after a frustrating few years.

Mediation/Alternative Dispute Resolution As a consequence of the aforementioned problems encountered on taxation this area has really gained some traction of late. Any alternative method that brings a satisfactory resolution to costs disputes must be embraced and I have generally found the mediation process to be a great success. The problem remains that the vast majority of paying parties are not incentivised to engage with a non-binding process and I have found that its usefulness is limited to cases that bring a certain complexity or consideration that formal taxation cannot address satisfactorily. Another attractive aspect to mediation can be the saving to the paying party in terms of court duty. There is a significant difference between 8% on a bill that taxes at €1m (€80,000 court duty) and a mediator’s fee of circa €5,000 to €10,000. Arbitration in respect of costs has gained little to no traction primarily due to the fact that the result is binding and neither party can appeal the decision. Mediation (or failure thereof) at least provides the comfort of a taxation process that can be availed of as a last resort. P

Expecting a sole practitioner in Co Leitrim to bill in the same fashion as one of the top commercial firms simply failed to take into account the diverse nature of firms that exist in this country

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Tax and WRC Decisions – A Disaster Zone Employment law sage Richard Grogan warns of unsuspecting tax problems that may arise in awards from the Workplace Relations Commission

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here is currently a problem with a number of Workplace Relations Commission (“WRC”) decisions. In a number of cases, particularly under payment of wages and the unfair dismissal legislation some adjudication officers are awarding sums exempt from tax. In payment of wages cases the award is subject to tax, subject to one exception set out later in this article. In cases under the unfair dismissal legislation all awards under this particular legislation are taxable. The fact that a decision of an adjudication officer may state that the award is compensation and may even state that it comes within the provisions of Section 192A Taxes Consolidation Act 1997 does not of itself make the award exempt from tax. The distinction between an award which is exempt and one which is not exempt is a distinction between salary/wages and compensation. This is a concept which is often misunderstood. Where the compensation is for an infringement of a right rather than the reimbursement of salary or wages, rather then it is exempt from tax. The provisions of the Payment of Wages Act and the Unfair Dismissal Acts are that the compensation is set for the “loss”. Section 7 (1) (c) Unfair Dismissal Act 1977 -1993 sets out that where an employee incurred any “financial loss” due to the dismissal, payment to him can be awarded of such compensation in respect of the “loss” not exceeding 104 weeks remuneration. In Section 6 of the Payment of Wages Act, the award is the net amount of wages under Section 6 (1) (b) if

the amount of the deduction of payment is greater than the normal weekly wage, then the adjudication officer can make an award of twice the weekly wage. In such circumstances the amount awarded for the economic loss is taxable but the additional amount is not. Admittedly there is a separate argument that the entire amount is taxable. I would caution colleagues to read the Revenue Tax Manual 7.1.27 when considering any award made against an employer to work out whether or not the award is taxable. It is an easy to read document. There are significant dangers for those acting for employers if a decision issues where it is directed that monies be paid as compensation and exempt from tax which are not in fact exempt from tax. Let us assume an award of €40,000 for Unfair Dismissal is made. The adjudication officer directs that the award is exempt from tax. In an unfair dismissal case there is a basic exception of €10,160. There is an additional allowance of €765 for each full completed year of service. If the employee had one year and one day’s service the total exemption is €10,925. The amount of €29,075 would be subject to tax. If the employer pays the full €40,000 without deducting tax because of the way the tax system works, the employer would be liable to pay to the Revenue a sum of approximately €30,000 in tax on top of the €40,000 paid to the employee. If that was not paid and a subsequent Revenue audit arose the employer could be responsible for over €60,000 in tax and interest. This

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Summer 2017 dsba.ie Richard Grogan is principal of Richard Grogan & Associates Solicitors and registered tax consultants

is a significant exposure for those acting for employers. We have seen a number of decisions under the unfair dismissal legislation where the wrong tax treatment has been specified by adjudication officers. This is not happening in the Labour Court. Colleagues need to carefully consider when acting for employers whether there is a tax liability. If there is any doubt or there is any delay in obtaining tax advice, an appeal should be submitted to the Labour Court. That gives you a further period of 21 days before any submission would need to be lodged to obtain tax advice. The appeal must be lodged within 42 days of the date of the decision from the adjudication officer. There is a second trap. If a decision awarding an unfair dismissal case is made exempt from tax and the matter is not appealed to the Labour Court and a colleague only finds out about it subsequently, the employee would still be entitled to apply to the District Court for the full implementation of the decision after 56 days. The District Court would have no jurisdiction other than to implement the decision in full. In those circumstances the employer would have to effectively “gross” up the award and pay the full award to the employee and a further €30,000 approximately goes to the Revenue, in the example above. No employer will thank a solicitor for such an additional charge. The only alternative would be to bring Judicial Review proceedings against the WRC. This short article is intended simply to highlight a particularly significant exposure for employers. That

Employment Law

exposure extends to us as solicitors. While many will not have tax experience the courts have consistently held that a solicitor acting in a case such as this, is presumed to have appropriate tax knowledge. It is not sufficient simply to tell an employer that you do not have tax knowledge and that they should get their own advice. The liability is very much with us as solicitors when we represent employers. Two recent cases have been specifically brought by me to the attention of the Law Society where awards of over €40,000 and €30,000 respectively were made and declared to be exempt from tax under the provisions of Section 192A TCA97. It is of course very worrying that the WRC is not properly applying the law. The adjudicators were obliged to attend training on this area. They have received detailed technical papers on this. I know because I was asked to present it. Unfortunately only half the adjudication officers attended that training as it was given on a Saturday afternoon. Significant mistakes are being made by some adjudication officers. Colleagues need to be very wary of decisions issuing from the WRC as regards the correct tax treatment and it is incumbent on you to check that the correct tax treatment has been applied. The Labour Court is extremely good at properly applying the tax law. I know of no case where the Labour Court incorrectly applied the tax legislation. This article is intended to be a warning to colleagues. P

Where the compensation is for an infringement of a right rather than the reimbursement of salary or wages rather then it is exempt from tax

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James Meighan is a olicitor with Eugene F Collins and a member of the DSBA Litigation Committee

Litigation

Courts Act 2016 The Courts Act 2016 is primarily concerned with introducing consistency to the Circuit Court’s jurisdiction in possession proceedings following a number of recent conflicting judgements of the High Court. James Meighan assesses the position

The Act makes it clear, if there was ever a doubt, that it is the legislature’s intention that possession proceedings, as provided for by the Act, should be heard in the Circuit Court

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he Courts Act 2016 “the Act” commenced on 28th December 2016 with section 2 of the Act commencing on 11th January 2017. The Court of Appeal in Permanent TSB plc .v. Langan [2016] IECA 229 (“Langan”) attempted to clarify the judgements of the High Court in Bank of Ireland Mortgage Bank .v. Finnegan and Ward [2015] IEHC 30 and Bank of Ireland .v. Hanley and Giblin [2015] IEHC 738. The decision in Langan stated that if a property is not rateable by virtue of the Valuation Act 2001 (“the 2001 Act”), or is captured by certain provisions of the land and conveyancing law reform acts, the Circuit Court has no jurisdiction to hear proceedings for possession of property. The Langan decision is currently under appeal to the Supreme Court. Section 1 of the Act inserts Section 53A to the Civil Liability and Courts Act 2004 by providing for a presumption of market value concerning the proceedings, it is presumed, until the contrary is proved, that the market value of the property does not exceed €3m. With proceedings issued after the commencement of Section 2 of the Act, the onus is on the defendant to prove that the property is valued at over €3m. Where proceedings have commenced prior to 11 January 2017, the onus is on the plaintiff to prove that the property is valued at less than €3m, if the issue of valuation is raised. The Act only relates to proceedings commenced after the Act came into force. For proceedings commenced before this date, Section 45 of the Civil Liability and Courts Act 2004 (“the 2004 Act”) (amended by S.I. No. 2/2017 - Civil Liability and Courts Act 2004 (Commencement) Order 2017) can

be relied upon to enable a party to apply to amend their proceedings to ensure that that the Circuit Court has jurisdiction where the value of the property does not exceed €3m. The 2004 Act amends the term “rateable valuation” to “market value” and the amended 2014 Act increases the old rateable valuation (provided for under Courts (Supplemental Provisions Act 1961) from £200 to €3m. The definition of “market value” is set out in the 2004 Act as follows “market value means, in relation to land, the price that would have been obtained in respect of the unencumbranced fee simple were the land to have been sold on the open market, in the year immediately preceding the bringing of the proceedings concerned, in such manner and subject to such conditions as might reasonably be calculated to have resulted in the vendor obtaining the best price for the land.” Section 3 of the Act amends Section 67(4) of the 2001 Act by providing for an exception of the hearsay rule in that a certificate pursuant to Section 67(4) of the 2001 Act is sufficient evidence of valuation of a property, until the contrary is proven. Section 4 amends Section 67 of the 2001 Act by providing for the valuation of a particular property to be determined by reference to other comparable properties which appears on the valuation list to the same rating authority area as the property is situated in. It is hoped that the Act will clarify the jurisdictional issues with the Circuit Court in possession proceedings following a number of legislative and judicial interventions over the past 15 years. The Act makes it clear, if there was ever a doubt, that it is the legislature’s intention that possession proceedings, as provided for by the Act, should be heard in the Circuit Court. P

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Flor McCarthy is 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

Mapping Change Flor McCarthy says that adapting to change is a key way to ensure your business enjoys sustained growth and he advises to map out your course

T

he tragedy of Rescue 116 is sobering. As someone who lives on the south coast, my heart always comes into my mouth when I see a Sikorsky out my window. It’s only there because someone’s in trouble and the crews put themselves in harm’s way every time they go out. Courage is not the absence of fear, it is doing what needs to be done despite the fear. Those crews are brave. And the fact that a group of extraordinary men and women paid the ultimate price just doing their jobs serving the likes of you and me, is truly humbling. The cause of the tragedy is not something that I am capable of commenting upon, having only a very superficial knowledge of what occurred, gleaned from basic press coverage. And so nothing in this article should be taken as any speculation on that subject, but there is one aspect of the coverage that caught my eye and which I believe holds within it a very important lesson for us all. One element under consideration appears to have been the fact that the one of the electronic navigation systems that the crew would have relied on, did not have Black Sod Island recorded accurately. They were flying in the dark in poor visibility and they were relying on their navigational systems, or in simple terms, their maps. When we don’t know where we are going, we rely on maps. But maps are only useful to the extent that they provide us with an accurate representation of

the territory in which we find ourselves. But, as Stephen Covey put it perfectly, the map is not the territory. A map is a representation of the territory and it is only useful to the extent that it is accurate, and current. A map of Cork is no help in trying to find your way around Dublin (one of the few instances in which I have to grudgingly concede that something from Cork is not inherently better than something from Dublin!). Similarly, a map of the route from Cork to Dublin from 1990 would be of little use today, as it would not show you the best route: the M7 completed in the meantime. A map is a paradigm; a way that we think of, and then portray, the world around us in order to make it easier for us to refer to it and to share it with others. We have many such paradigms. And like maps, they only make sense if they describe what they are supposed to represent accurately. Yet often, like maps, our paradigms are not the product of our own direct and verifiable experience. It wouldn’t make sense any other way; why spend all that energy exploring and mapping the world if someone else has already done so, and better than you might have been capable of doing yourself? This is true of many aspects of life but it is particularly true of conservative professions like law. As lawyers, our whole system of viewing and understanding the world is based on precedent, we

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Summer 2017 dsba.ie

Practice Management

learn what we do by vocational training from more experienced practitioners. It’s a tried-and-tested system; good for teaching and learning the technical practice of law. The problem is that such a system provides an inherently conservative world view. One in which the paradigms shared for understanding the world: the view of ourselves, the work we do and our roles in the world, are all based in the past. They are very good for navigating the territory of stare decisis. They are less good at explaining the business of law or the value proposition of the lawyer in the modern world, a world in which the landscape has changed dramatically and is continuing to change at an ever increasing pace. The important thing to realise is that we are not stuck with the old maps; we use them because they are what we are used to, or because we may have never really questioned their usefulness, or because it is just easier to fit in with our peers by doing so. But we can change our thinking. And if we are going to survive we are going to have to. Business reality now for lawyers involves a paradigm shift. It is not about getting incrementally better, doing conveyancing a bit more efficiently or a little more cost effectively, it is about changing our understanding of ourselves so that we are relevant to and sought after by the people who we are best placed to help with the problems for which they want solutions.

It involves knowing who these people are in the first place and repositioning our businesses to serve them, to be desirable and attractive to them. To be useful and valuable to them. And to build profitable and sustainable businesses in doing so. Not the other way around. Not to expect that they must come to us and fit into our old model of doing things if they are to do business with us. Most public discourse around the legal profession is concerned with its parasitic nature and excessive cost. As lawyers we resent that. But if we are honest, is our problem not really that we hate the fact that we get pilloried for charging too much when in reality most of us don’t make enough? We do not run the risks to life and limb that the crews of the emergency services do every day when they go to work to keep us safe. But we are to face an existential threat to our business survival if we continue to try to navigate the territory before us, using out of date maps. We must open our eyes to the reality of business that now confronts us as lawyers and change how we do things accordingly. Before it is too late and reality comes crashing up to meet us. The first change must be to our thinking. In business as in nature, it is not a question of survival of the fittest, but rather of those best able to adapt. Fastest. As lawyers we have no immunity from this fundamental truth. The good news is that, for those willing to adapt, it contains within it endless opportunity. P

We must open our eyes to the reality of business that now confronts us as lawyers and change how we do things accordingly

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Gender (in) Justice A major research study into women in the law is currently underway at University College Cork. Professor Irene Lynch Fannon reveals some of the findings to date and foresees certain results

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n 2002 Ivana Bacik, Cathryn Costello and Eileen Drew, conducted what is still the most comprehensive study of its kind in Ireland looking at Women in The Law. The report which was published in 2003 listed 50 recommendations aimed at addressing the lack of progress of women in all parts of the legal profession. Generally the recommendations were aimed at addressing particular obstacles which faced women but some of the issues raised did however, affect all members of the profession. So for example, problems surrounding the growth of the long working hours culture driven by hourly billing structures and the consequent dynamics of fee earning within firms were perceived as being particularly family unfriendly. Even at this time many men who responded to the surveys conducted identified this feature of legal practise as being increasingly problematic in terms of family and work/ life balance. Despite the truly impressive quality of the work underlying the original project, no follow-up studies had been conducted. Consequently, 15 years later we did not know how many of these recommendations had actually been implemented and there was certainly evidence that many of the barriers and obstacles continued to be in place, and in some cases seemed to be even more acute. This seemed to be the case despite significant numbers of women entering law schools and significant numbers of women qualifying in at least one branch of the profession, namely as solicitors. The Irish Women Lawyers’ Association has embarked on a research project to conduct an audit of progress made to date with the recommendations of the Gender (in) Justice project. (The IWLA was formed in 2002 following a conference held by women working in the law in Ireland, from both North and South, held in

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Dublin back in November 2000. It is affiliated to the European Women Lawyers’ Association.) The aim of our current research is to conduct an audit of the current state of affairs with a view to identifying how many recommendations of the report have been implemented. We are also interested in identifying awareness of the original report, or the issues which were raised in the report. Finally, we hope to conduct a survey of individual experiences of legal practise.

Progress We started our research project in early 2016. We prepared letters to be sent to a range of entities from law firms to those involved in legal education including university law schools and the professional bodies. We composed specific questionnaires based on recommendations specifically directed at the relevant entities. As with all empirical studies the challenge was to ensure the surveys were created in a way which did not suggest particular answers. More challenging was the issue of how to collate and summarise answers. As we set about establishing structures for this final challenge we realised that particular kinds of information were already available to us and so we conducted a desk survey garnering information from various sources including but not limited to, the following: • The Courts Service of Ireland at www.courts.ie, in particular the annual report 2015 published in mid2016. • Information from the Law Library at www.lawlibrary.ie • We also took information which had been published in the the Bar Review and in particular, we engaged with Grainne Larkin, BL, chair of the working group for Women at the Bar. • The Law Society Gazette and the Incorporated Law Society of Ireland, www.lawsociety.ie.


Summer 2017 dsba.ie Irene Lynch Fannon is a solicitor and a professor of law at University College Cork

Women in Law

Speakers at the Irish Women Lawyers’ Association and DSBA panel event in April 2017

These various sources provided us with a range of statistics which allowed us to make some preliminary findings regarding progress since 2003. These were presented at an IWLA meeting in April of this year and are described below. This summer we will resume work on the empirical part of the research project with a view to publishing a report under the auspices of the IWLA.

Some Findings to Date As expected, given the numbers of women students of law, we have found a positive numerical trend in the number of women practising law. The increase of women practising as lawyers is expressed most clearly in the solicitors’ branch of the profession. As mentioned earlier, whilst 41% of solicitors in 2002 were female, as at the end of 2014, just over 50% of solicitors were women. It is clear therefore that as regards the sorts of barriers which faced women during the last century in terms of entry, these barriers no longer exist. Women can clearly study law without obstacles and can progress to qualification in the professions. As we will see however, beyond these initial boundaries the obstacles are present and in many ways less surmountable because of their complex nature. These are obstacles which lack transparency and lack straightforward solutions. This phenomenon, often termed the ‘glass ceiling’ is also described (by Ivana Bacik and others) as a ‘sticky floor’. It is common in other areas of activity which are closely related to the activities of this author in higher education and in relation to the progression of women as business leaders. The picture of how women are faring in the law is complex and nuanced, and so it is important not to leap to conclusions which are entirely negative or

entirely positive or optimistic. The figures present some interesting food for thought. We have seen considerable progress in terms of public service appointments, so that while in 2002 only 21% of judges were women, as of November 2016, 35% of judges are women. This represents an increase of 14 percentage points in as many years. Similarly, senior public positions in the legal world such as that of the Attorney General, the Director of Public Prosecutions, the Chief State Solicitor and the Revenue Solicitor have been occupied by women. On the other hand, in 2002 34% of barristers were women but as of 2015 that figure stood at 39%. This represents a proportionally smaller increase of representation of women at 5 percentage points. Disappointingly the number of female barristers who were senior counsel only increased by 1 percentage point from 5% in 2002 to 6% in 2015. We do not have figures for partners, equity partners in firms as yet, but we hope to obtain these through our empirical work this summer. As things stand some of our figures are now over a year old and we hope to update these for the final report.

Further Work and Expected Results As much work as possible has been done by desk survey. It is now necessary to expand our study by completing the empirical work described above. Based on current research so far, we expect our findings to illustrate positive numbers in terms of women obtaining legal education and qualifications and participating at the outset in legal careers. It is important however not to overlook the complexity of this picture. It is obvious that initial barriers to entry for women into legal education and professional training are non existent now. Similarly progression to early stages of career

We have seen considerable progress in terms of public service appointments, so that while in 2002 only 21% of judges were women, as of November 2016, 35% of judges are women

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If it were the case that we lost similar numbers of male graduates in a profession over a period of 30 years, this would be addressed as a national emergency

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in practice do not present as being problematic. What is clearly more problematic is progression into the better paid and more influential roles of senior counsel, partner and equity partner. There has been considerable progression in terms of judicial appointments, but again the figures present a mixed picture which is not entirely positive. The lack of positivity is underscored by the fact that for over a generation of students, the majority of law students have been women. In this regard these figures represent a significant attrition rate, rather than a positive story of linear progression.

Suggestions for Further Research and Conclusion It is interesting to note that the original Gender (in) Justice report included the following suggestions for further research: • More research is needed into the histories of the ‘pioneers’ – the early women lawyers who paved the way for future generations. • The professional bodies should institute further research into the extent of gender disparity in lawyers’ pay. We will do some empirical work on this during the summer of 2016. • Where particular problems or issues are identified from our data on a gendered basis, the professional bodies should sponsor further research to address these problems. For example, one of the issues which is clearly problematic is the ‘long hours culture’ which has become a feature of Irish legal practice in the last two decades. There is much work to be done in relation to the impact of this way of practising law on work/life balance for all legal practitioners. The action research model utilised by the EU research project on women in higher education is aptly suited to addressing this type of issue. • Most importantly, in this writer’s view, the issue of female participation in the law (as is the case in relation to female participation in other areas of economic or political activity) continues to

be viewed as an issue of linear progression with women starting from a low level of participation and progressing over time towards a level of equal or near equal participation with men. This is the case with the work which we have presented here. This perspective tends to offer an optimistic and positive picture, and leads to the mistaken assumption that it is only a matter of time before women secure parity with men in the particular field of activity, in this case legal practice. However, this way of looking at this issue hides a much more serious problem which is only revealed when one considers the issue in terms of attrition rather than progression. Female participation in all aspects of legal practice presents this issue in particularly stark terms. As has been mentioned in this piece, from the late 1990s onwards female participation in law schools was more than 50%. This represents nearly 30 years worth of graduating classes which started out with more women than men. As we know women are simply not present in these numbers in the legal profession in its entirety. If it were the case that we lost similar numbers of male graduates in a profession over a period of 30 years, this would be addressed as a national emergency. It is time to turn this problem on its head and ask what has happened to cause such significant attrition rates of women lawyers? P

Professor Irene Lynch Fannon


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Summer 2017 dsba.ie Kevin O’Higgins is a former President of both the DSBA and the Law Society. He is principal of Kevin O’Higgins Solicitors in Blackrock

Interview

Vive La France How does a French native, daughter of a pig farmer in rural France, end up as a Competition Law partner in one of the country’s largest firms. Kevin O’Higgins meets Florence Loric to find out

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e all know of the pre-eminent position which Arthur Cox occupies in the legal infrastructure in Ireland with offices in Dublin, Belfast, London, New York and Silicon Valley. It is a leading firm employing 660 people with 273 lawyers in Dublin alone and now located in its magnificent new offices at 10 Earlsfort Terrace on the corner of Earsfort Terrace and Hatch Street. Having worked there myself as a young lawyer I have always maintained a tremendous admiration for the firm. In my time there in the 1980s it was located where it had been since its very early days in the 1920s, at 42-3 St Stephen’s Green. Employing then about 50 solicitors it was undoubtedly then a male bastion, although there may have been a female partner for a period before I joined. But this has long since changed as evidenced by the fact that seven of the last 12 partner appointments have been female. Arthur Cox has an excellent alumni programme which over the years, has enabled those of us who have passed through their doors an opportunity to keep in touch, exchange war stories and generally marvel at the stellar growth of the firm over the years. It was at just such an occasion recently that I encountered Florence Loric and in my brief exchange was struck by how a French native, born, reared and educated in France could end up as a partner in Arthur Cox. I was curious to hear her story and how it happened, as I couldn’t fathom how the reverse could happen whereby an Irish lawyer might reach similar eminence in a Parisian firm. So I met with Florence at 10 Earsfort Terrace. The move from Arthur Cox’s previous home for 20 years had only recently happened. The new office is a high-rise building spanning a whopping 132,000 square feet and dominated by an atrium cascading through the heart of the building. Our new Taoiseach Leo had been in the building earlier launching the firm’s LGBGT network but I seem to have just missed him! I met Florence on the 6th floor of the building offering panoramic views of our city.

Florence is married with a teenage daughter and two younger boys (one of whom is called Leo). She became a partner in the spring of this year. Her area of expertise is in competition and regulated markets. She has extensive experience in advising on the regulation of network industries such as telecoms, energy, aviation and airports, broadcasting, commercial litigation in regulated markets involving European law and public administrative law. She also advises on the application of competition law, including State aid, merger control and issues surrounding dominance and abusive practices. Florence is from Brittany, a province in France dear to us Irish, particularly those of us who like to sail and drive. It’s a region of Celtic mystique, old traditions and unsurprisingly, is predominantly Roman Catholic. Her village is Melrand in a rural heartland of the Morbihan region, and comprises about 1,500 inhabitants. It is in northwest France near Vannes, Pontivy, Lorient, Forges des Salles, and Carnac. It is an area where agriculture still permeates. In fact, Florence tells me that her family rear pigs and growing up on the farm, together with her two sisters and brother they would have helped out on the farm in between school commitments. I discover too an Irish connection to her village. The shoemaker in Melrand had married a girl from Ballineen and Enniskean in West Cork. These two Cork villages became twinned with Florence’s village of Melrand. Such was the importance of the occasion for her village that Florence, then a mere 14-year-old, came over for the twinning ceremony in Macroom, her first visit abroad, in what was subsequently to become her adopted country. In fact, when she would next return to Ireland would be to visit her fiancé, a Dublin lawyer, whom she was to meet while working in Brussels and then subsequently marry him in a ceremony which took place in her village of Merland. But in the meantime education was to be the driver for Florence and her siblings, with parallels too for many of us here in Ireland. Florence attended the

Formality is far more pronounced in France in the way lawyers deal with each other. Here, it seems to be more laidback

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Photography: Bryan Meade

I am unashamedly pro European and voted in all elections while in Ireland from municipal to national

local national school in her village, then secondary in Pontivy some 14km away. Third level was in University of Rennes where she studied politics, sociology and economics. Law was not by this stage on her radar. Her outlook was however, distinctly European and internationalist. This was particularly fermented when, after Rennes, she did a post graduate stint in Norwich University and encountered students from all over the world and made great friendships. But with all this learning she still wasn’t finit! An Erasmus followed in Copenhagen where she studied European law and then Bruges where she completed her masters. By my count this is year six or seven as a student eclipsing one academic milestone after another and I ask her how she managed to live. She tells me that she coped with the assistance of some part-time work, a State grant, and not least, a student’s innate ability to survive! Florence was now more than fully equipped to enter the real world and earn a crust. She headed to Brussels, for many the epicentre of European legal practice. Having done a stint in Deloitte as a legal advisor, she then joined the US firm of Squire Patton Boggs in Brussels where she honed her skills in competition law and telecoms. She was now building up a glittering CV but yet, had never actually studied French law and sought to redress that deficiency. She headed to Paris with a view to studying as an advocate and joining the firm of Latham and Watkins. But by this stage the Dubliner had slowed her gallop! They had met while in Brussels where he was also a competition lawyer. He took up a position with a firm in Dublin so the relationship was long distance for a while until Florence came over, found work as a legal compliance officer with the Broadcasting Authority of Ireland and got married in 2002.

Ever the educationalist Florence enrolled with the Law Society to do the FE-1’s while securing a traineeship with Arthur Cox. She immersed herself in the telecoms and regulatory area drawing on her earlier experiences and qualified in 2008. By this stage her career trajectory must surely have been well mapped. I ask her how she might describe the different approaches to legal practice in Paris or urban France to here. “Formality is far more pronounced in France in the way lawyers deal with each other. Here, it seems to be more laidback.” In practice, now she isn’t dealing to any great extent with her French colleagues and nor does she ingrain herself unduly amongst the French community here. While I didn’t ask her to apologise for Thierry Henry and his blatant hand ball I asked her about Macron. “I am unashamedly pro European and voted in all elections while in Ireland from municipal to national.” She tells me that this would have meant a fair bit of queueing outside the embassy but that is something of importance to her. As a strong European she was relieved with Macron’s defeat of Le Pen. In conclusion, I asked Florence how she manages all that she does, the sort of challenges that most working mothers have. “When my children were smaller the firm were very good in enabling me and others, to work on occasion, from home”. The firm describes this as “agile working”. She doesn’t have a typical working day which makes work all the more interesting. I hope you agree that Florence’s story is an inspiring one and a testament to what hard work, a passion for what you believe in, a compulsion to follow your dream wherever it might take you and however unlikely the end destination might have seemed at the start of the journey. Veuillez croire, Florence, en l’espression de notre consideration distinguee! P

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Summer 2017 dsba.ie Greg Ryan is programme director of the DSBA. He is principal of Greg Ryan Solicitors and he is chair of the Law Society Technology Committee

IT Law

New General Data Protection Regulation Greg Ryan examines the new General Data Protection Regulation (GDPR) and highlights what you need to do to comply

T

he CCBE, the Council of Bars and Law Societies of Europe, have provided an overview of the main new compliance measures that Bars and Law Societies may wish to recommend to practitioners in order to ensure compliance with the requirements of the new GDPR which comes into force in May 2018. The vast majority of practices in Europe are below the threshold of 250 employees, and thus some issues will not apply to those firms but compliance is a matter for each firm. The first guideline is in relation to security breach notifications. Pursuant to Article 33, a law practice acting as a data controller must notify personal data breaches to the Data Protection Commissioner without undue delay and in any event, not more than 72 hours after becoming aware of such breach. The controller is required to document such breaches in a sufficiently detailed manner to allow the Commissioner to verify compliance with the breach notification. Solicitors’ firms are also required to establish internal procedures for handling data breaches and to establish a mechanism for notification. Under Article 34, in certain high risk cases, the firm is also required to notify its clients directly although there are special exemptions. This area will be the subject of future regulation. Under Article 70, the European Data Protection Board will also issue guidelines or recommendations on best practice in relation to breaches and the definition of undue delay. Article 17 provides for the right to erasure, also known as the right to be forgotten. That means that data subjects have the right to demand that you erase personal data concerning them without undue delay. This provision comes from the Google Spain case in which the court stated that individuals have the right, subject to certain requirements and safeguards, to ask search engines to remove links with personal information about them. However, paragraph 3 of Article 17 includes a restriction that may be invoked by law firms to the extent that their processing activities and thus the retention of the data are necessary “for the establishment, exercise or defence of legal claims”. This obviously does not override either the obligation to retain data for a certain period of time, i.e. to comply with tax obligations or Law Society obligations. Another feature is the requirement to appoint a Data Protection Officer (DPO) if the data processing activities of the organisation involve regular and

systematic monitoring of data subjects on a large scale. Article 37 applies to the controller and processor of special categories of data. These provisions require the designation of a Data Protection Officer in any case where the core activities of the controller or processor consist of processing a large scale of the special categories of data pursuant to Article 9. The meaning of “large scale” has yet to be defined and is an important issue as a smaller firm may have cases with a large amount of data. However, it will be easy to argue on the basis of recital 91 that this requirement will not apply to sole practitioners. Under Article 35, where type of processing is likely to result in high risk to the rights and freedoms of natural persons including any processing on a large scale of special categories of data, the controller must, prior to the processing, carry out an impact assessment and in particular, when using new technologies. There is very little guidance in the WP29 guidelines on Data Protection Officers which was adopted on 13th December, 2016. Further, compared to data breach notification, there is no clear regulatory history or guidance on how impact assessment should be conducted by law firms. Currently data protections impact assessments are diverse in their content and methods and are most popular in countries with common law traditions. The actual practical requirements are not yet known. Further guidance will be provided by supervisory authorities and the new board, such as in relation to the kind of processing operations in which such impact assessments may be required. Data subjects have a right to obtain from the Controller a copy of the personal data relating to them that is being or has been processed. Article 20 provides that the data needs to be handed over in a structured commonly machine-readable format but these were only very generic requirements. Data controllers must be able to track the recipients of personal data pertaining to a specific person, at a minimum recording the name and electronic contact details. Fortuitously this is an obligation that can be met by certain small changes in the IT systems for example, configuring the systems in such a way as to have a reliably trackable record of recipients of personal information and these are steps which need to be discussed with the IT provider for each firm on a caseby- case basis. P

Article 17 provides for the right to erasure, also known as the right to be forgotten. That means that data subjects have the right to demand that you erase personal data concerning them without undue delay

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Beneficial Ownership Regulations:

What do you need to know? On 15th November 2016, the European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2016 (the “Regulations”) were published by the Department of Finance. Lorna Osborne provides an overview of the regulations which require companies and other legal entities incorporated in Ireland to take all reasonable steps to obtain and hold adequate, accurate and current information in respect of their beneficial owners in an internal beneficial ownership register of the entity

Background

Who is a ‘Beneficial Owner’?

The regulations are the first step in the transposition of the European Union’s fourth Anti-Money Laundering Directive (the “Directive”) which required each member state to establish a central register of beneficial ownership by 26th June 2017. The regulations give effect to part of Article 30(1) of the Directive which requires corporate and other legal entities to hold adequate, accurate and current information on their beneficial ownership in an internal beneficial ownership register.

Article 3(6) of the Directive defines a “beneficial owner” in the case of corporate entities, as any natural person who ultimately owns or controls the Relevant Entity through direct or indirect ownership of a sufficient percentage of the shares or voting rights in that entity.

Who do the Regulations Apply to? The regulations apply to all corporate entities (including companies and any other body corporates) and other legal entities incorporated in Ireland (“Relevant Entities”) but excludes entities that are: • listed on a regulated market and are subject to disclosure requirements that are consistent with EU law; or • already subject to equivalent international standards ensuring adequate transparency of beneficial ownership. The regulations do not apply to trust structures governed by Irish law. A separate provision of the Directive deals with beneficial ownership of trusts but this provision has not yet been transposed into Irish law.

• Direct Ownership Test If a natural person holds 25% plus one share, or another form of ownership interest exceeding 25% (e.g. controlling voting rights in a Relevant Entity that does not have a shareholding structure), in a Relevant Entity, he will be deemed to have direct ownership and be a beneficial owner. • Indirect Ownership Test If a company or group of companies controlled by a natural person hold more than 25% of the shares, or another form of ownership interest exceeding 25%, in a Relevant Entity, the natural person will be deemed to have indirect ownership and be a beneficial owner.

What are the Key Obligations for Relevant Entities? Every Relevant Entity must take all reasonable steps to obtain and hold adequate, accurate and current

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Summer 2017 dsba.ie Lorna Osborne is a solicitor with Eugene F Collins

information in respect of their beneficial owners in an internal beneficial ownership register. The following information should be recorded in the Relevant Entity’s beneficial ownership register: • the name, date of birth, nationality and residential address of each beneficial owner; • a statement of the nature and extent of the interest held by each beneficial owner; • the date on which the natural person was entered into the register as a beneficial owner; and • the date on which the natural person ceased to be a beneficial owner. The Relevant Entity must serve notice on any natural person whom it has reasonable cause to believe to be a beneficial owner, requiring the natural person to state whether he or she is a beneficial owner of the Relevant Entity. If the natural person is a beneficial owner, he or she will be required to supply such necessary information to the Relevant Entity to complete the beneficial ownership register. Upon receipt of notice from the Relevant Entity, the natural person has one month to comply with the request for information. A Relevant Entity may also give notice to any other person which it has reasonable cause to believe has knowledge of: (i) the identity of a beneficial owner of the Relevant Entity or (ii) the identity any other person likely to have knowledge of a beneficial owner of the Relevant Entity. If having exhausted all possible means, the Relevant Entity cannot identify a natural person who is a beneficial owner, or there is doubt as to whether any natural person so identified is a beneficial owner, the Relevant Entity must enter the details of its senior management officials (i.e. its directors and chief executive officer) into the beneficial ownership register. In such circumstance, the Relevant Entity must also keep records of all steps it took to ascertain the beneficial owners. It should be noted that in the case of some corporate entities, there may not be any beneficial owners because of the broad-based ownership of the corporate entity. In such cases, the senior management officials of the corporate entity will need to be entered into the beneficial ownership register. The beneficial ownership register must be updated when there is a relevant change in beneficial ownership such as where a natural person ceases to be a beneficial owner, or there is a change in the stated particulars in the register (e.g. change of address etc).

What are the Key Obligations for Beneficial Owners? If a natural person is the beneficial owner of a Relevant Entity and knows (or ought to know) that this is the case, and his or her details are not in the beneficial ownership register maintained by the Relevant Entity, he or she must inform the Relevant Entity that he or she is a beneficial owner and confirm: • the date on which he became a beneficial owner;

Company Law

and • the details that the Relevant Entity needs for its beneficial ownership register. If a natural person is the beneficial owner of a Relevant Entity and is listed as such on the beneficial ownership register maintained by the Relevant Entity and either ceases to be a beneficial owner or there is a change in the stated particulars in the register, the natural person must notify the Relevant Entity of that fact.

What are the Sanctions for NonCompliance? Failure by a Relevant Entity or an individual to comply with their respective obligations under the regulations is a criminal offence and can result in the imposition of, on summary conviction, a fine of €5,000.

What is Next? The rationale for transposing Article 30(1) in advance of the rest of the Directive is that, in order for the central register of beneficial ownership to be effective from as early a date as possible after full transposition of the Directive, Relevant Entities will need time to gather the necessary information in respect of their beneficial owners and to record this in their internal beneficial ownership register. How the beneficial ownership information will be passed by the Relevant Entities to the operator of the central register remains to be seen. The Companies Registration Office (CRO) has been mandated to establish and maintain the central register and it was expected that the central register would be established in late June 2017 in conjunction with the legislation to implement the Directive in Ireland coming into force. However, the CRO confirmed that the launch of the central register has been postponed until the final quarter of 2017, with Relevant Entities being given an extended timeframe within which to make their filings after the launch. When the remaining provisions of the Directive are transposed into Irish law, the information on beneficial ownership must be accessible, presumably via the central register, by: • competent authorities and financial intelligence units; • entities carrying out customer due diligence (e.g. investment funds and banks); and • those who can demonstrate a legitimate interest in the information.

Failure by a Relevant Entity or an individual to comply with their respective obligations under the regulations is a criminal offence and can result in the imposition of on summary conviction, a fine of €5,000

Member states may provide for wider access to the central register and it is not known whether Ireland will avail of this option when transposing the remaining provisions of the Directive. Notably, the European Commission has proposed an amendment to the Directive and proposed that public access be granted to the central register. However, it remains to be seen if this proposal will be accepted. P the Parchment 49

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BAIN AN MHEIRG DE DO CHUID GAEILGE ARD-DIOPLÓMA SA DLÍ-CHLEACHTADH TRÍ GHAEILGE

Neartaigh do chuid Gaeilge agus cuir ar do chumas seirbhísí dlí a thairiscint tríthi. Múintear idir Ghaeilge agus Dlí ar an sainchúrsa seo. Múintear ranganna i gceart-scríobh na Gaeilge gach tráthnóna Luain ó Dheireadh Fómhair go hEanáir agus ceardlanna/ ranganna practiciúla sa Dlí thar 6 ghearr-dheireadh seachtaine (tráthnóna Aoine agus leathlá ar an Satharn) uair sa mhí ó Dheireadh Fómhair go Márta. Cuimsítear cúrsaí sibhialta agus coiriúla, dréachtú, abhcóideacht, comhchomhairle agus idirbheartaíocht. Tá an cúrsa seo ar oscailt do dhlíodóirí a bhfuil líofacht Ghaeilge acu agus dírítear ar na ceantair chleachtais ina ndéantar obair trí Ghaeilge. Tátar ag cur le stádas oifigiúil na Gaeilge san AE agus beidh sí lán-oifigiúil faoi 2022. Bíonn éileamh seasta in Éirinn agus in Institiúidí AE ar dhlíodóirí ar féidir leo cleachtadh trí Ghaeilge. “Bhí an cúrsa iontach spéisiúil, tairfeach agus praiticúil. Ba dheas eolas a chur ar na téarmaí dlí as Gaeilge agus cur lenár gcuid scileanna gairmiúla ó thaobh na Gaeilge de. Is iad na trialacha bréige is mó a thaithin liom mar aturnae a ní cuid mhór dlíthíochta. Ar bhonn pearsanta, tá mé ag súil go mór leis na scileanna a d’fhoghlaim mé a chur chun leasa mo chuid cliant.” Michael Flanigan, Aturnae

Cuireann an Roinn Ealaíon, Oidhreachta agus Gaeltachta tacaíocht ar fáil don dá chúrsa seo. Tuilleadh eolais: Dáithí Mac Cárthaigh BL dmaccarthaigh@kingsinns.ie 087-2368364 www.kingsinns.ie

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Summer 2017 dsba.ie Tomás Nyhan is an associate solicitor in the property team at Hayes Solicitors

Conveyancing

2017 Conditions of Sale

Planning & Development Tomás Nyhan reviews the revised general condition 36 of the Law Society Conditions of Sale which relate to planning and development and he says that there have been significant changes

T

he publication of the 2017 edition of the Law Society Conditions of Sale has been broadly welcomed by the profession as reflecting the changes in conveyancing practices in the eight years since last updated in 2009. The most significant change is the revision of general condition 36 relating to planning and development. This has sought to halt the widespread practice whereby more often than not, practitioners acting on behalf of vendors seek at the very least to limit (and in many cases to totally exclude) warranties which a vendor was expected to furnish to a purchaser in respect of compliance of the property with planning permission and building regulations. The amended general condition 36 has radically changed the approach of solicitors acting for either

vendor or purchaser in a transaction at pre-contract stage. The revised condition attempts to reduce the onerous obligations on the vendor while at the same time imposing a positive obligation on the purchaser to actively investigate the planning history of the property and as a result, to spread the risk on a more even keel between the parties. The spirit in which the condition has been drafted is with the intention that in future, general condition 36 will remain intact and unaltered in contracts for sale, save in rare or exceptional circumstances. A fundamental aspect of the new general condition 36 is that it confines the planning warranties given by the vendor in the sale of a property to the ‘relevant period’. Under previous editions of the Conditions of Sale, the vendor was obliged to give an open ended warranty in the Parchment 51

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respect of compliance with planning permission since the 1st October 1964, the operative date of the Local Government (Planning and Development) Act 1963. The ‘relevant period’ is defined in general condition 36 (g) as ‘the period commencing on the date when the vendor first acquired an interest in the subject property and ending on the date of sale’. The definition of ‘date of sale’ being the date on which a contract for sale became binding as between a vendor and purchaser or in the case of an auction, the date of auction. Thus, the vendor warrants that there has been no development of the property during the relevant period. Where there has been development of the property within the relevant period, the vendor is obliged to disclose all planning permissions required by law for any such development and warrants that all conditions contained within any planning permissions have been substantially complied with. This is a significant and welcome contraction in the obligations of a vendor and reflects the commercial reality that most vendors, while they will have an intimate knowledge of their property, cannot realistically be expected to give warranties stretching back in some cases in excess of 50 years. In addition, where the provisions of the building regulations as made under the Building Control Act 1990 apply to any such development, the vendor also warrants substantial compliance with the regulations in so far as they relate to that development. The only exception to the ‘relevant period’ provision is that there is an obligation on the vendor under general condition 36(a)(iii)to disclose to the purchaser any breach or non-compliance with planning legislation affecting the property prior to the relevant period where the vendor is on notice of any such breaches or non-compliance. These circumstances may arise, for instance, where non-compliance issues were disclosed to the vendor in the contract or replies to requisition on title when he or she purchased the property and which have not since been remedied. This may pose significant difficulties for the vendor; particularly where such documentation may not have been retained with the title or is no longer available as general condition 36(b) goes on to clarify that the vendor is deemed ‘to be on actual notice of any matter disclosed to the endor’ when the property was acquired. In practical terms, if there are non-compliant issues which existed prior to the vendor acquiring the property which the vendor is on notice of, and which have not been remedied, it is submitted that it would be appropriate in those circumstances for the vendor’s solicitor to draft an appropriate special condition limiting the warranty of the vendor under general condition 36 and disclosing the non-compliant issues. The revised general condition 36 makes it imperative that both solicitors in a transaction carry out a thorough, pre-contract investigation into compliance with planning and development and in this regard, the parties will also need to be cognisant of the subtle, yet equally significant changes to the provisions of general condition 35 in respect of disclosure of notices. Under general condition 35, the vendor is obliged to disclose to the purchaser any notices in respect of the property issued ‘by or at the behest of a competent authority’

affecting the property up to the date of sale which have been notified to the vendor or which is within the vendor’s knowledge. ‘Competent authority’ is given an extremely wide definition and is, effectively, the State or any emanation of the State ‘authorised directly or indirectly to control, regulate, modify or restrict the development, use or servicing of land or buildings or empowered to acquire land by compulsory process’. This would include for example, any planning enforcement notices and zoning and it is open to the purchaser to seek rescission of the contract if the vendor fails to show inter alia that the purchaser was on notice of any such matters, or that same was apparent from an inspection of the development plan or draft development plan for the area within which the property is situated. The right of the purchaser to rescind the contract on the above stated grounds is however, tempered by general condition 35(b) which provides that the purchaser shall not be permitted to rescind the contract in respect of any notice or order the details of which have been entered on the planning register prior to the date of sale. In light of these provisions it is imperative that both parties carry out pre-contract planning searches in the relevant planning office. From a vendor’s perspective, he or she will want to ensure that full disclosure is made in respect of all aspects of the planning history of the property, thus shifting the risk to the purchaser and insulating the vendor against any future actions or attempts by the purchaser to rescind the contract. Equally, a purchaser will need to protect its position in light of the provisions of general condition 35(b) and a full, comprehensive planning search should be carried out prior to the purchaser executing the contract for sale and all acts appearing should be fully explained by the vendor. Copies of all planning permissions appearing should be obtained and where appearing, any acts of non-compliance dealt with appropriately. Where the purchaser is obtaining finance for the purchase of the property, practitioners need to be mindful that any acts appearing on the planning search which are not dealt with satisfactorily by the vendor may need to be disclosed to the lender’s solicitor and an appropriate qualification on title drafted and agreed. With planning searches now an essential component of the investigation of title, it is essential that your law searcher is fully and properly briefed on what is required from a planning search. It is noteworthy that there is anecdotal evidence that planning searches have been returned without reference to enforcement notices and particular attention should be focused on the enforcements register as it is maintained separately to the planning register and can take longer to obtain a search result. It is interesting to note that the provisions of condition 35(b) have created an anomaly. In most private treaty sales the contract will be executed in the first instance by the purchaser and then sent to the vendor’s solicitor where, if the purchaser’s offer is accepted, the contract is executed by the vendor and dated – the date of sale. As the purchaser has virtually no control over when the contract is executed by the vendor, the purchaser runs the risk that an adverse

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Summer 2017 dsba.ie

Conveyancing

notice or order is recorded on the planning register against the property in this intervening period. This lacuna may need to be addressed in the future by way of an amendment to the general condition or by way of special condition. Either way the purchaser’s solicitor needs to be extra vigilant. General condition 36 also expands the documents which a vendor is obliged to furnish to a purchaser prior to the date of sale, or in the event of a new development, on completion. The list of documents takes into account the far reaching reforms of the Building Control (Amendment) Regulations introduced in 2014 and 2015. Additionally, a vendor is obliged to furnish evidence of compliance with all financial contributions and requirements for bonds set out in any grant of planning permission. An exception is made in respect of the initial grant of planning permission for a residential development. In that case if the vendor’s solicitor produces written confirmation from the local authority that the roads and services within the development have been taken in charge, unless indicated to the contrary by the local authority in that confirmation, it is no longer necessary to obtain specific confirmations in respect of each specific financial contribution.

In line with what has become a generally accepted conveyancing practice, there is no longer any obligation to produce copies of building bye law approvals or commencement notices, unless same are available. Finally, under general condition 36(f) a vendor is entitled to rely on any certificate or opinion of compliance of an engineer or architect in respect of any warranties given by the vendor under general condition 36 and dealt with in that certificate or opinion. In those circumstances the vendor will not be held liable for any inaccuracies or errors in that opinion unless the vendor becomes aware of any such inaccuracies or errors on or before the date of sale, in which case the purchaser may give notice to rescind the contract. It will be no small task to break the habit of limiting or excluding general condition 36 – particularly in relation to significant commercial property transactions where the parties may wish to be pragmatic and take a commercial decision where there are obvious planning deficiencies. One thing that is clear - regardless of the value or nature of the property, issues pertaining to planning and development must be front and centre in the minds of practitioners from the very outset of any property transaction. P the Parchment 53

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Summer 2017 dsba.ie Gavin Anderson is a trainee solicitor with Beauchamps Solicitors

News

International Moot Competition Telders is a competition in which law students prepare written pleadings and oral arguments with respect to a problem of public international law. The competition takes place annually and the final is held at the Peace Palace in the Hague. Gavin Anderson reports on the event

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he Telders International Law Moot Court Competition passed its 40th milestone in 2017. Since its beginnings in 1977, when only four universities took part, the competition has today become the most prestigious and important moot court competition in Europe. The Law Society of Ireland team was picked following a short written submission and presentation in front of the Society’s faculty. Having not partaken in any type of debating at university I was hesitant about trying out, knowing that other students had a good deal of public speaking experience behind them. Prior to attending Blackhall, my firm encouraged me to get involved in these types of competitions, recognising the great benefits of involvement itself but also the benefits of becoming a competent speaker as one progresses in their legal career. The Law Society chose myself (Beauchamps), Wura Olatunbosun (Matheson), Faye Rowlands (A&L Goodbody) and Glen Rogers (McCann Fitzgerald) to represent them. Our team was coached by Eva Massa, a course manager and member of the EU and International Affairs Committee at the Law Society. Eva was extremely helpful during the written submissions and the oral rounds, knowing that the team, all coming from commercially focused firms had relatively little knowledge of public international law. The Telders 2017 case raised complex issues of international diplomatic law, the law of treaties and the law of countermeasures, and was largely based on a real-life dispute between France and Equatorial Guinea, which remains to be decided by the ICJ. Our team was required to plead on behalf of both the applicant and the respondent. The standard of participants was excellent and we were up against strong teams from some of the top universities in Europe. Overall there were 100 individual participants from 25 countries. Over the few days in the Hague we came up against four countries: Sweden, Ukraine, France and Bulgaria. Our team was delighted to place second overall in the competition based on our written memorials and oral pleadings for both the applicant and respondent. This is the Law Society’s highest ranking to date at Telders.

Our team also won first prize for Best Oral Argument on behalf of the respondent, with Wura and I placing as the second and third best oralists in the competition. Glen and Faye also placed highly in the top 20 oralist rankings. Walking up to receive our prizes in the Great Hall of Justice at the Peace Palace, the seat of the ICJ, is something I do not think any us will ever forget. The trip to the Hague was a fantastic experience and while the mooting aspect was challenging, there was a healthy social side to the trip. While there was a great deal of work involved, as a trainee solicitor, I would highly recommend partaking in a moot court (or any type of advocacy) competition. I feel I have benefited enormously from the experience, from improved advocacy skills to improved research and writing skills. I have found that these skills have flowed directly into the workplace, with regards to making presentations, conducting research and also becoming more assertive during meetings and consultations. It was an honour to represent Ireland at the international round of Telders 2017. I believe I speak on behalf of all the team by thanking our coach Eva Massa for her dedication, and also the Law Society of Ireland and our respective firms (Beauchamps, McCann Fitzgerald, A&L Goodbody and Matheson) for their continued support and sponsorship of the trip. P

The Law Society team: Glen Rogers, McCann Fitzgerald; Wura Olatunbosun, Matheson; Gavin Anderson, Beauchamps and Faye Rowland, A&L Goodbody, with their prizes outside the Peace Palace at the Hague in Holland the Parchment 55

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Victims of Crime The Criminal Justice (Victims of Crime) Bill 2016 seeks to transpose Directive 2012/29/EU establishing minimum standards on the rights, supports and protections of victims of crime. Miska Hanahoe says that the directive has had direct effect in Ireland since the deadline for transposition in November 2015 and the Bill provides welcome clarification on how it is envisaged that rights and protections set out will be applied in Ireland

T

he key aim of the directive is to put victims and victims’ rights at the centre of the criminal process through the provision of information, the implementation of formal measures and protections to be put in place during an investigation and prosecution, and an expansion of the rights of a victim to participate in the criminal process.

Who can Avail of Rights Under the Bill? A definition of ‘victim’ would be placed on statutory footing for the first time in Irish law under section 2 of the Bill as “a natural person who has suffered harm including physical, mental or emotional harm or economic loss, which was directly caused by an offence”. A person’s status as a victim and the protections thereby afforded to them under the proposed legislation, therefore flows from the commission of an offence by another, regardless of whether the offence becomes the subject of a criminal investigation or prosecution. A family member may also avail of the rights under the Bill where an offence results in the death of a victim; provided they are not under investigation or subject to charge in respect of the death.

Right to Information One of the key components of the Bill is to put on a statutory basis the right for the victim to receive information, both of a generalised nature relating to the criminal justice system, and to their own complaint. It is hoped that the provision of information in this way will make the criminal justice system less daunting and more transparent for victims, as well as assisting their active participation of any proceedings.

The right to information is essentially a two-stage process – information which must be furnished to the victim on first contact with an Garda Siochana and thereafter information which is to be provided on foot of a request by the victim. The victim controls the level of information received and may resubmit a request for information at a later stage in the process. The type of information which must to be provided at first contact is set out under section 6. It includes information of the role of the victim and the procedure for making a complaint about an offence, but also on a wide range of secondary measures. For example, information on obtaining protection measures such as safety or barring orders, and information about victim support services. Information about compensatory schemes, reimbursements of expenses and the possibility of legal aid must also be provided upon request. Crucially, a victim must also be provided with a point of contact for enquiries about their complaint and the procedures for making a complaint against an Garda Siochana, the Ombudsman Commission, the Office of the DPP, the Courts Service or Irish Prison Service. The extent and nature of the information required can be tailored by reference to the alleged offence or needs of the victim. Once an investigation is commenced, a victim must be told of their right to request certain information and the procedures for so doing, as well as their right to amend the request. Here, the type of information envisaged includes information on ‘significant developments’ in the investigation, for example, the arrest or charging of a suspect or the discontinuance of an investigation.

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Summer 2017 dsba.ie Miska Hanahoe is a solicitor at M E Hanahoe. She is a member of the DSBA Criminal Law Committee

Where an investigation is discontinued, the right to information includes a right to reasons for the discontinuance. Where a decision is made not to prosecute an offence, the victim is again entitled to reasons for the decision, and may seek a review of that decision. Should a victim seek such a review they must be furnished with the result in writing. Where a prosecution is commenced a victim may request information on the natures of the charges arising, the time and place of trial and, where a prosecution is successful, the time and date of sentencing and any appeal arising. Where an offender is successfully prosecuted and a prison sentence imposed, a victim may request certain information from the Irish Prison Service regarding their imprisonment, such as information on transfers, expected release dates and decisions on temporary release. Information requested by a victim does not have to be provided where the provision could interfere with an investigation, prejudice proceedings, endanger the personal safety of a person or endanger national security. Records shall be kept regarding any decision not to provide information that has been requested. It is clear that the scope of obligation to provide information to victims represents a significant challenge to the statutory bodies involved, particularly an Garda Siochana, and will require a considerable amount of extra training and resources to be committed if Part 2 of the Bill is to be properly implemented. For certain of the bodies concerned, for example the Irish Prison Service, a requirement for disclosures relating to issues of sentence management represents an entirely new approach and it remains to be seen what effect, if any, these additional external pressures would have on such decisions.

The Role of the Solicitor An ancillary right to the right to information, is the right to be accompanied by a person of the victim’s choice; although a member may exclude the person chosen under certain circumstances. The right to be accompanied is outlined in relation to a victim’s first contact with an Garda Siochana, when making a complaint to or providing a statement or interview. Explicit provision is made for the possibility that that person can be the legal representative of the victim. Certainly there are identifiable areas where access to legal advice would be of benefit to a victim in navigating the new rights provided under the Bill. One obvious example would be where a victim is provided with reasons for a decision not to prosecute and wishes to formulate a request for review of that decision. Rather unsatisfactorily, while there is a requirement under section 6 for an Garda Siochana to provide information relating to the availability of legal advice and legal aid, the Bill does not provide for a system of legal aid for victims of crime.

Criminal Law

A Tailored Approach Arguably the most far reaching measure contained in the Bill is the requirement for an Garda Siochana to carry out an individual assessment of each victim under section 14. The purpose of the assessment is to ensure that extra measures are put in place where a victim is identified as having protection needs. The level of assessment required will depend on the severity of the offence and the apparent harm to the victim. The views of the victim, or where the victim is a child, the views of the victim and their parent/guardian shall be taken into account when identifying protection measures required. Relevant considerations include the nature and circumstances of the alleged offence, the particular characteristics of the victim including any relationship to the alleged offender.

Children Shall be Presumed to Have Protection Needs Where a victim has been assessed as having specific protection needs, the member conducting the assessment shall inform a member not below rank of superintendent who shall in turn, inform the member in charge of the investigation and direct that they implement or arrange for the implementation of the measures. The type of protection measures envisaged during investigation are similar to those currently in place in relation to investigation of certain sexual offences or investigations relating to children, for example interviews to be conducted by a member of the same sex or by specially trained officers or in adapted surroundings. Where a prosecution results, extra protection measures could include the court of trial to making an order excluding the public from the proceedings under section 19 or giving directions limiting the scope questioning in relation to private life of victim. The public interest must be weighed against the rights of the victim when a court is considering such orders. The court may also give leave to a victim to give evidence by way of video link, through an intermediary or behind a screen because of a “particular vulnerability to secondary and repeat victimisation, intimidation and retaliation”. The Bill also includes a number of measures seeking to ensure the trial process is more ‘victim-friendly’. Courthouses built after the commencement of the Bill will require a separate waiting area for victims. The Bill also extends the right to make a victim impact statement to all victims. Practitioners working in the area will have already seen some courts requesting that victims be canvassed in relation to their wish to provide victim impact evidence in line with Ireland’s obligations under the directive. The Bill which passed through the second stage in March of this year, is a welcome development in Irish law, putting the rights of victims of crime on a statutory basis for the first time. It represents a significant strengthening of the rights of victims in Ireland and will be an important step forward in creating a criminal justice system which ensures offenders receive a fair trial while also supporting and protecting the rights and victims of crime. P

One of the key components of the Bill is to put on a statutory basis the right for the victim to receive information, both of a generalised nature relating to the criminal justice system, and to their own complaint

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In Practice

NEW HIGH COURT COSTS DIRECTION Practitioners should note the recent Practice Direction HC71 re payment on account of costs pending taxation. The Practice Direction states that in all cases where there is no dispute to the liability for the payment of costs (and in any other case which a judge thinks appropriate), an order may be made directing payment of a reasonable sum on account of costs within such period as may be specified by the judge pending the taxation of costs. The Direction goes on to state that such orders may be made on an undertaking being given by the solicitor for

FILES OF CLOSED PRACTICES On occasion a solicitor may be asked to take up files from solicitors’ practices that have closed for whatever reason. This could be where there is a disorderly closure and files are being transferred by the closing practice and or by the Law Society and not necessarily by the client. We would offer the following advices to any practice receiving files in this way: A. Know your professional Conduct Obligations and Duties; particularly 6.5 (Undertakings) and 7.6 (Transfer of Files) of the Guide. Refresh your memory if needs be. 1. In every case the client whose file it is should be written to and advised that you hold the file; write an appropriate unambiguous letter, so that the client knows the onus is on them to contact and instruct you (and, if appropriate, that you will not take responsibility for matters, dates, action or inaction, until they have signed a letter of engagement of your firm in each specific matter, formally instructing you). 2. The Law Society should also be written to and they should be advised of all of the files that you have taken from the solicitors firm in question; 3. In our view no undertakings of any kind should be given to any financial institutions or to any third party

POST SETANTA POINTERS As a result of the recent Supreme Court decision in the Setanta Case, there are a number of practical issues facing practitioners whose cases have been on hold. Whereas matters are working themselves out as they go along, there are a couple of pointers which may be of use to practitioners. Firstly, it appears that all practitioners that have issued proceedings against the Motor Insurers Bureau of Ireland will be asked to file a Notice of Discontinuance forthwith in respect of the MIBI only. One supposes the Bureau will not be seeking costs in the matter once the Notice of Discontinuance is filed. The Law Society has indicated plaintiffs will recover 65% of their damages together with 100% of their legal

the successful party, that in the event of taxation realising a smaller sum than that directed to be paid on account, any overpayment will be repaid. The Practice Direction was signed on 28th March 2017 and came into effect on 24th April 2017. It is envisaged that such orders will be made at judgement stage and could have the effect of overcoming some of the lengthy delays currently being experienced in the taxation process. Our President Áine Hynes was instrumental in engaging with the President of the High Court and getting this development over the line. Killian O’Reilly, Chairman - DSBA Litigation Committee

arising out of any issues in this file where there is a pre-existing undertaking which has not been complied with. This will not prevent any firm taking up the file and with the client’s instructions and appropriate authority using that firm’s offices to close out any issues that may have arisen. Exercise caution, even if an assurance or undertaking seems benign. 4. Remember, your colleague may have placed instructions for two (or more) matters on one file. Be clear to the client/third parties what you are (and are not) instructed to do. You may be unwilling to do something your predecessor might have been willing to do; the client/third parties need that to be made clear to them. 5. Needless to say great care would have to be taken to ensure that if a file is to be reopened by you that you have all necessary authorities of the client and that all AML requirements have been satisfied and appropriate terms and conditions dispatched to the client to include section 68 (soon to be section 150) notifications. 6. You should also ensure that you have looked at any PII issues that might arise including if necessary advising your insurer. The DSBA Practice Management Committee

costs, there is apparently a notice on the court’s website stating that 65% of costs will be recovered. I am trying to liaise with the Court Service in relation to this to clarify whether this is an error or not. It would appear as these matters work themselves out that initially instructions will be given to solicitors acting on behalf of Setanta defendants, to settle cases where liability is not in issue. As to whether or not they will require cases where liability is in issue to run, that remains to be decided. I would suggest if defendants were not in a position to meet in either case, that practitioners proceed with all due haste to a court hearing. Barra O’Cochlain - DSBA Litigation Committee

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Summer 2017 dsba.ie

News

DSBA News

visedRevised Book Book MorrisMorris Partners Partners Giving Quantum Finders Tackle of Quantumup at AMOSS up at AMOSS Something unch Launch Housing Issue Back

Congratulations to our Congratulations to our colleague Killian Morris colleague Killian Morris who was recently appointed who was recently appointed almost 50 years FLAC (Free partner at AMOSSFor Solicitors, partner at AMOSS Solicitors, Probate genealogy company Finders members of the public and local Dublin authorities Legal Advice Centres) has worked to 2. Killian joined Dublin 2. Killian joined International has recently launched a new who have problems in identifyingAMOSS who thein 2014 following improve access justice for people in ten into AMOSS 2014 following ten service across Ireland relating to vacant and owners of certain properties are.” Ireland, particularly more vulnerable years of practice with another years of practice with another derelict properties. Given the very nature If the owner of a property passes away and marginalised individuals. The prominent Dublin firm prominent acting acting organisation hasDublin alwaysfirm relied greatly on of the services provided by Finders, it was being the last surviving member of their for Irish businesses, property forvolunteering Irish businesses, property lawyers their unique skills felt that it could help identify some of the family, having not married or had children developers and high worth developers high net worth tonet assist people and in vindicating their legal vast amount of unused properties in Ireland. themselves, it can sometimes be difficult to individuals in relation toindividuals all in relation to all rights. More known by solicitors for its ability to identify the owners of that property. It is property and commercial One of FLAC’s outreach channels their propertymain and commercial trace beneficiaries and unknown next of cases like this that Grennan and their his colleagues law requirements. is vialaw a countrywide network of free legal requirements. kin to estates, Finders has begun to realise are working on regularly. A recent case of a He is saw part of theadvice AMOSS clinics run of in the conjunction He is part AMOSS with that it is in the unique position of being derelict house in Co Meath for example, local real Citizens’ Centres. estateand team, primarily estateInformation team, primarily able to establish title and identify and locate them tracing beneficial owners inreal Canada In these clinics, FLAC volunteers offer acting for property developers, acting for property developers, the owners or beneficial owners of such the US who were completely unaware of their information and to people financial institutions, practitioners and investors in financial institutions, insolvency practitioners andadvice investors in in 15–20 properties nationwide. entitlement. “Theinsolvency goal is to have these empty minutesale, sessions. and training is relation to allplaced aspects of the purchase, leasing financing ofleasingSupport relation to all sale, aspects of theand purchase, and financing of Business development manager for homes Four Courts at the Pictured recent presentation of theatrevised ‘Book at the Four Courts the recent presentation of the revised ‘Bookback on the marketplace so provided locally by FLAC and Citizens’ commercial property. commercial property. Finders, Padraic Grennan, explains what the that they can be sold, refurbished and back in of Kelly, Quantum’ were: of Mr the Justice Kelly, President of the High Court; ere: Mr Justice Peter President HighPeter Court; Information Centres. Killian has been parttoof the has been part of the Parchment committee forParchment the past committee for the past entails. “There are many reasons why Killian circulation as housing stock. It’s a solution Joeservice Pendle, Verisk Analytics, the company who compiled the General isk Analytics, the company who compiled the General The clinics offer basic legal assistance number of years and is a regular contributor with his interviews number ofInjuries years regular contributor Guidelines; and Conor O’Brien, Injuries Chief Executive of the Personal aExecutive property might become empty or derelict,” a very small and partisofa the housing crisis we with are his interviews d Conor O’Brien, Chief of the Personal only; FLAC volunteers cannot act for, and profiles. We wish in hisonnew role.of callers or Assessment Board “We are assisting solicitors, and solicitor profiles. wishsolicitor him well in his new role.him says Grennan. facing today,” saidWe Grennan. oard writewell letters behalf

Lady Solicitor’s Lunch Friday 29th September 2017 for Lady Solicitors in the Kildare & University Club at 1pm. Drinks Reception at 12.30pm. Tickets: €60 For bookings and more information please contact maura@dsba.ie or Tel: 01 476 3824.

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give second opinions. Volunteers have no solicitor/client relationship with callers and must not refer anyone to their own or any particular law firms. They also take part in FLAC’s data collection programme which informs the organisation’s overall law reform and policy work. In 2016 FLAC volunteers helped well over 13,000 callers to clinics nationwide across all areas of law. This is testimony to the consistent generosity of lawyers all over Ireland in supporting their communities. Our volunteers come from all levels of the legal profession and many have been volunteering for many years, finding it a rewarding and practical way to use their skills for good, sometimes in areas of law outside their usual practice. FLAC is now recruiting barristers and solicitors for local clinics around Ireland. If you are qualified to practise in Ireland and available for approximately two hours, one evening per month - FLAC would love to hear from you. If you are interested in becoming a FLAC volunteer, please visit www.flac. ie and complete our online registration form or contact Lorraine Walsh at FLAC on 01–8873628.

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Summer 2017 dsba.ie Photography: Michael Finn

Right l to r: Joan Doran; Patricia Hickey; Aine Hynes (President DSBA); Paul Brady, BL; the Honorable Mr Justice Peter Kelly, President of the High Court; Olive Doyle; Mark Felton and Katharine Kelleher

DSBA Mental Health & Capacity Seminar

The DSBA Mental Health and Capacity Committee hosted a CPD seminar on 8th March 2017 at the offices of Byrne Wallace. The seminar addressed advances in wardship and an update on the Capacity Act 2015. Mr Justice Peter Kelly, President of the High Court chaired the seminar. The speakers were DSBA President, Aine Hynes, St John Solicitors; Katharine Kelleher, Comyn Kelleher Tobin; Patricia Hickey, general solicitor for minors and wards of court; Mark Felton, Felton McKnight and Paul Brady, BL. Our thanks to Byrne Wallace for their hospitality.

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DSBA Property Seminar

The DSBA Property Committee hosted a CPD seminar on 14th March 2017. The seminar was entitled “The New Contract for Sale and General Conditions 201 and Specific Performance - What you Need to Know.” The speakers were Patrick Sweetman, Matheson; Nicola Byrne, Mason Hayes & Curran and Michael Twomey, Arthur Cox.

Photography: Michael Finn

Left to right: Stuart Creavin, Creavin & Crowe; Bernard Creavin, Creavin & Crowe; Joe Kelly, Cannons

Left: Julie O’Connell, Richard Black Solicitors; Miriam Delaney, Vincent & Beatty. Far left: Jemma Lyons, Gordon Judge Solicitors; Michelle Stewart, Eversheds; Jacinta O’Sullivan, Patrick F O’Reilly

Right: Mark Walsh, Eugene F Collins; Mick Twomey Arthur Cox; Albert Fagan. Far right: Anne Stephenson; John Holland, Holland Canon; Val Stone, Stone Solicitors

Left: Ann Hart, CBW Boyle & Son; David Murphy, Corrigan & Corrigan. Far left: Ray Quinn, Raymond Quinn Solicitors; Niall McCabe, Bowman McCabe

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Summer 2017 dsba.ie Photography: Michael Finn

Right: Finnian Doyle, Doyle & Co; Brian Delahunt, Delahunt Solicitors

DSBA Probate and Tax Seminar

The DSBA Probate and Tax Committee hosted a CPD seminar on 22nd March 2017. The seminar was entitled “Devil in the detail Part One: Will Drafting.” The speakers were Anne Stephenson, Stephenson Solicitors; Sandra Meade, chartered tax adviser and trust and estate practitioner and Justin McKenna, Partners at Law.

Left: Manus Sweeney, Manus Sweeney & Co; Darach Connolly, Darach Connolly Solicitors. Far left: Fiona Shipsey, Hayes Solicitors; Aisling O’Leary, Cantillons

Right: Colm Murphy, Colm Murphy & Co; Clare Breslin, Amoss Solicitors. Far right: Joanna Bannon, McDowell Purcell; Edel McDermott, Ambrose O’Sullivan

Left: Máire Ní Mhaoldhomhnaigh, Mason Hayes & Curran; Denis Finn, Denis Finn & Co. Far left: Billy White, WX White; Kevin O’Doherty, O’Doherty Warren

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Closing Argument Noeline Blackwell

Noeline Blackwell is the chief executive officer of the Dublin Rape Crisis Centre. She was the former Director General of FLAC (Free Legal Advice Centre) in Ireland

Zero Tolerance of Sexual Harassment

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he European Commission has designated 2017 as a year dedicated to combating violence against women. As my focus as a solicitor working in the Dublin Rape Crisis Centre is on sexual violence, I continue to wonder why this serious harm remains so prevalent despite its sometimes devastating effects on the health, welfare and social inclusion of a victim and those around them. The more I see, the more I wonder whether solicitors and other legal professionals are doing all we can to end tolerance of this corrosive and dangerous set of human rights violations and hold perpetrators to account. While sexual violence is a problem for all genders, and my centre deals with many male victims, the truth remains that women are disproportionately affected – both in the numbers assaulted and in the impact on them. Hence the EU focus on women this year. According to a 2014 EU Fundamental Rights Agency survey, which bears out trends also found in specifically Irish studies: 1. One in three women in the EU has experienced physical and/or sexual violence since the age of 15; 2. One in 20 women has been raped; 3. 75 % of women in qualified professions or top management have been victims of sexual harassment; and 4. One in ten women has experienced stalking or sexual harassment through new technologies; and 5. 55% of women have experienced sexual harassment. Therefore it is a safe bet that some Parchment readers will themselves have suffered sexual violence. Others will have been affected by such violence visited on family, friends, employees or colleagues.

There has been some progress in recognising the harm of sexual violence. Though badly underfunded, health professionals have learned a lot about the trauma that victims of sexual violence suffer and the therapy they may need to heal. Until 1990, a husband could rape his wife with impunity. That is no longer the case. Those involved in the investigation and prosecution of these crimes understand that special techniques are needed, though these are patchily applied. There is recognition that a person’s sexual experience will often be entirely irrelevant in court proceedings. Nonetheless, the legal system is failing victims of sexual violence. In 2015, 102 defendants were prosecuted for rape and 53 for sexual assault. Only 2,579 reports of sexual offences were made to the police in 2016. There is no adequate data on legal accountability, civil or criminal, for sexual harassment within the legal system. For as long as people can get away with crime without a credible risk of prosecution, we won’t tackle sexual violence adequately. But the problem isn’t always the many technical and legal difficulties around prosecution. Pervasive attitudes in our society that question a victim’s behaviour, that assume that there is a right to demand sex, that suggest that a person is asking for trouble by walking in the wrong place or by drinking too much, that consent can be assumed rather than negotiated, all make their way into our legal system too. The figure that I quoted at the outset – that 75% of women in professions and top management have suffered sexual harassment – draws a number of reactions from female colleagues I meet. Some acknowledge it with a shrug, seeing it as part of the culture of the legal professions. Others wonder if the women questioned

75 % of women in qualified professions or top management have been victims of sexual harassment

were too sensitive. Yet others will be hurt by the wrongful actions, but fear to take any steps that might damage their careers or reputations. Some are troubled but don’t know what to do to protect themselves and their staff. There are extraordinarily brilliant, insightful legal professionals working to ensure that the rights of those who suffer sexual violence are vindicated. But as a group, lawyers are in a unique position to do more, to shift societal attitudes to a greater respect for people’s right to give or withhold consent to sexual contact. More education is needed on the rights of victims. There is an excellent opportunity to focus on this as the EU Victim’s Directive is now directly applicable in Irish law and the Victims of Crime Bill 2017 is being debated in the Oireachtas right now. It is the opportunity for all lawyers to build their skills and knowledge to understand, advise and vindicate rights for those who suffer this pervasive harm. The other thing all lawyers could do is to refuse to tolerate any form of harassment or of non-consensual sexual contact in their profession and to denounce it when it happens because staying silent is implicit approval. This doesn’t need any law reform. It just needs the legal profession to respect the law as it stands and to respect the rights of others. Zero tolerance of sexual harassment or sexual contact without consent would be truly transformative. It would make for safer, more civilised workplaces. It would permeate the vindication of the rights of victims throughout the justice system. And it would mean that 2017 might give an extra impetus to combat the idea that we must accept that sexual violence is a normal part of life in this first world country in the 21st century. P

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