Parchment Summer 2019

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Summer 2019

From the Editor


elcome to the summer Parchment. Our focus in this edition is on our colleagues where we profile and interview the Minister for Justice and Equality Charlie Flanagan TD; human rights campaigner Simone George; DSBA President Greg Ryan and Managing Partner of DAC Beachcroft Lisa Broderick. To have Solicitor Charlie Flanagan TD in the role as Justice Minister is a great honour for the profession. He has transcended the world of both law and politics with ease and aplomb. It is heartening to see that the proposed new Family Law Courts earmarked for Hammond Lane is high on his agenda. It is way beyond time that our Family Law Courts have their own purpose built facility for the benefit of all concerned. Mr. Justice Michael Peart was the worthy winner of the DSBA Lifetime Achievement Award for 2019. Please see pages 12-15 for further details. Mr. Justice Peart has been a shining beacon to the solicitor’s profession as he showed that there was

no glass ceiling to judicial advancement for those who graduated through Blackhall Place rather than the Kings Inns. What sets Mr. Justice Michael Peart apart as a ‘Judge of the Ages’ is not just the breath of his legal acumen but the way he treats litigants and practitioners. His Court is one where courtesy, humanity and kindness is always to the fore and that will never be forgotten by those who were fortunate to appear before him. Have a great summer break.

John Geary

DSBA COUNCIL 2018/2019



DIEGO GALLAGHER Honorary Secretary


SUSAN MARTIN Programmes Director











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.

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

DSBA OFFICE, T: 01 670 6089 F: 01 670 6090 E: DX 212011 W: ADVERTISING ENQUIRIES Caron Flynn T: 01 707 6022

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


the Parchment 1

Summer 2019

Contents 6

Charlie Flanagan – A Double Life The Parchment’s intrepid reporter meets the Minister for Justice and Equality


DSBA Annual Book Award Winners

The benefits and costs of the new parental leave entitlements Louise O’Byrne and Helen Webb set out the new parental entitlements employers will have to provide


Il Presidente


New Residential Tenancies Act Update

Killian Morris interviews DSBA President Greg Ryan

Oliver Fitzgerald summarises the tougher tenant protections, extensive RTB investigative powers and sanctions for landlords

Dublin Solicitors’ Bar Association 1st Floor, 54 Dawson Street, Dublin 2, Ireland T: 01 670 6089 E: W:

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page 6


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


I would be like to see Hammond Lane be for family law what the CCJ complex has been for criminal law, a landmark signature court building


Summer 2019


REGULAR FEATURES 01 04 50 54 56 64

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

12 28

Simone Says


Whistle blowing Protection

Stuart Gilhooly speaks to solicitor and outspoken campaigner Simone George

Anne Lyne outlines why a new EU directive is a significant development for whistle blowing protection in Europe


Family Lawyers and Mental Health


Succession Planning for Businesses

Noreen Maguire says that solicitors often underestimate the effect traumatic cases can have on them

Sandra Meade and Robert Burns assess some options available to individuals looking to sell their business or retire


20 Minutes with…..Lisa Broderick


Family Law Settlements


Julie Doyle meets the new managing partner at DAC Beachcroft

Keith Walsh provides an overview on the recent changes to Order 59 of the Circuit Court Rules

40 the Parchment 3

Message from the President

DSBA Forges Ahead


he good weather is on its way, although not as tropical as last year and as that always does, it marked the annual DSBA dinner and DSBA Law Book Awards which again proved to be a fabulous success this year. We’re very grateful that the Minister, Josepha Madigan made time in her very busy schedule for us, to address the guests and most importantly to give the prizes to the deserving winners. I would like to thank the sponsors, publishers and the council members of the DSBA for making the night a great success and for putting in the ti e and e ort in organising as they always do. Particular mention must go to the winner of the Dublin Solicitors’ Bar Association Lifetime Achievement Award 2019, Mr Justice Michael Peart. As you will be aware, Michael was a solicitor from 1970 until 2002 when he moved to the High Court bench and subsequently to the Court of Appeal. The mandarins in the Courts Service are threatening to a e hi retire this year but he s fighting o that day tooth and nail e oins the distinguished company of Alan Shatter and rian allagher ointly last year r eo rey hannon 201 r ho as ourtney 201 i allaghan and Bláthna Ruane in 2015 and Professor John Wylie in 2014. ur annual conference to yon in September is almost full, with 110 of the 120 places sold. Momentum is gathering as we finalise the detail of what will be a superb weekend away in one of France’s a or cities in the heartland of urgundy and eau olais. The DSBA continues its close relationship with the through the taskforce, ably chaired by our former past president, Robert Ryan. We continue meeting regularly with Dr Brian Doherty, and I’m delighted to report that it loo s as if the will ta e a or steps on 1st July with the transfer of the co plaints function fro the aw ociety to the . hereafter the rest of the functions will also begin to be assumed by the Authority. There is a consultation on the education part of the legislation in epte ber with a view to finalising proposals on that by the end of the year. 4 the Parchment

n a co ittee level our co ittees continue to work tirelessly on behalf of the DSBA. I thanked them at the annual dinner and I would like to take this opportunity to do so again. We have over 200 volunteers, sitting on 12 di erent co ittees who contribute their time gratis, and without whom, the organisation simply would not work. The breadth of work that they undertake is enormous from the regular committee meetings to articles for the Parchment, to submissions to Government departments and to the organisation of the CPDs. n the issue of P s our P ti etable is coming to an end with the summer break

in view. We have two seminars pencilled in for July and as is customary in August, we take a break and I’m delighted to report we will be back at the beginning of September with the new o ercial aw o ittee Precedent hare Purchase gree ents which with be launched hopefully in the first wee in epte ber. The organisation is in rude health and goes from strength to strength and might wish you all an en oyable su er brea once the courts finally close up on 1st July and I look forward to seeing you all in September. Greg Ryan, DSBA President


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Charlie Flanagan – a Double Life Law and politics have been Charlie Flanagan’s twin tracks in life. The Parchment has been keen to catch up with our Justice Minister for an interview for so e ti e and finally our intrepid reporter recently et the Laois solicitor at Government Buildings for a chat


t is the su er of 19 the concept of cli ate change ay have been alien but Ireland is in the middle of a aelstro of uctuating weather. There are reports of multiple incidents of sunstro e at that year s onnacht senior football final in ac ale Par astlebar to be followed a few wee s later by near apocalyptic wind and rain as the country is lashed by the tail end of urricane harley. The political climate of Ireland in the su er of 19 is e ually volatile. A referendum campaign to amend the Constitution to allow for the introduction of divorce is in full swing. It’s a bruising and divisive campaign which exposed deep fissures within rish society. nto this hornets nest steps a young ounty aois solicitor who had been as ed by his local ivorce ction roup to address a ca paign rally at the illeshin otel Portlaoise. ll bring the e ory to y grave uses harlie lanagan inister for ustice as he begins to recall the story. was guest spea er at the invite of ags rien of the ivorce ction roup had a bit of fa ily law e perience and had held a number of classes for women advising the on things such as the a ily o e Protection ct. y sheer coincidence in the same hotel on the same night there was an anti-divorce eeting which y father liver lanagan was addressing. uring the course of y address to about 20 people could hear the boo ing voice of y father addressing a crowd of about 550 people. e met on the stairs in the hotel afterwards and he as ed e how did you get on said got on fine to which he replied listen you bac ed the wrong horse on this occasion but don t ta e it personally . hat story is a neat illustration of the public life of Charlie Flanagan. On the one hand he is perpetually associated with his 6 the Parchment

Electioneering was the proverbial way of life in the Flanagan household. hen suggest to the Minister that his father had a safe seat unbeaten in 14 consecutive general elections heading the poll in 11 of those he appears ta en abac by the e rontery of this suggestion and describes the mindset around the Flanagan kitchen table at election time’

father liver but on the other hand he is his own an ploughing a furrow in politics independent to the ideological path ta en by his father. n the day that the Parchment finally caught up with the Minister for this special interview a certain frisson was in the air at Leinster ouse. hancellor ngela er el had ust arrived that morning to engage in a round of shuttle diplo acy with the overn ent. s we crossed over to Government Buildings via the ministerial corridor which houses the private o ces of the aoiseach and his cabinet. I ask him whether he agrees with the opinion of the nglish pole icist Peter itchens that these days all politicians are bland careerists . he inister s iles wryly but is far too diplo atic to answer directly. would say that there are possibly less characters around these days in politics. ll give you an e a ple go bac to y father s ti e when he shared an o ce on the fourth oor with ho as ur e for lare 19 1951 and harles agan for est eath 19 -19 1 . ur e was nown as the onesetter he literally cured people by setting bones and discs. hen the political business of the day was done y father would light a fire with turf brought up from Mountmellick and hi self and harles agan would lay out plan s of ti ber in the o ce and while o ur e was getting hi self ready y father would go collect the patients waiting to see o ur e orn in ount ellic ounty aois in 195 one of four children born to liver and Mai Flanagan he was educated at the local national school and later attended noc beg ollege in arlow for his secondlevel education. e first beca e interested in the law through neighbours of his fa ily. i elly and ubert etherstonhaugh were both solicitors who lived on our road in ount ellic they were both rather

Summer 2019

Special Interview

the Parchment 7

In 1988 Charlie took the plunge and opened up his own practice in Portlaoise. felt needed to establish y own practice and also felt that Portlaoise was going to be the centre of activity in Laois for the foreseeable future ictorian figures but they were friends of y parents. owever it was ournalis and not the law that was young harlie lanagan s first love. e studied nglish and history for his degree in and was on his way to enrolling in a ournalis postgraduate course at wansea niversity when his other suggested that he consider doing so ething a bit ore per anent . o he opted for the law and secured an apprenticeship with Enda arren artin arren olicitors . nda was a ayo an in a ublin o ce he had a great way with hi and was a lovely decent an. he apprenticeship e posed harlie to a lot of personal in ury e perience - an area where Enda Marren was something of a specialist. ut as ualification bec oned so too did the lure of the oore ounty as Charlie was planning a move home. ualified in 19 2 and got y parch ent during the course of the ove ber 19 2 general election ca paign the third of three general elections in an 1 - onth period . y father arrived up for the cere ony well ore for the photograph both of us ended up on the front page of the following day s Irish Times - got y parch ent and he got his photo. here was no eal no celebration and we were back out canvassing that evening as soon as we reached the Laois border on the ourney down fro lac hall Place we were out on the hustings. ot your typical parch ent cere ony e perience perhaps lectioneering was the proverbial way of life in the lanagan household. hen suggest to the Minister that his father had a safe seat unbeaten in 1 consecutive general elections heading the poll in 11 of those he appears ta en abac by the e rontery of this suggestion and describes the mindset around the Flanagan kitchen table at election time as there is no such thing as a safe seat you start o with one vote your own often ti es you re luc y if you can get your own fa ily to give you the nu ber one vote and beyond that there s a lot of counting in 10 000 votes nce ualified he was e ployed by idan onnell at his practice in Portarlington. idan onnell had a great in uence on y legal career he was one of three brothers fro aois idan ugh and ory onnell who all went on to beco e outstanding solicitors he adds the practice 8 the Parchment

was a general one district court litigation conveyancing wills and probate and idan was a trusted an in the town. The concept of the solicitor being a trusted professional in the eyes of the co unity is a the e that the inister regularly returns to t beca e clear to e when oined idan s practice that in order to become a successful solicitor you needed to be nown but you also needed to be trusted. pending five years in total with idan onnell he recalls a busy ti e in practice. side fro the o ce in Portarlington idan had an o ce in onasterevin we were busy between the istrict ourt in Portarlington the ircuit ourt in aas and Portlaoise. he first counsel ever sent a brief to was avid yrne who subse uently went on to beco e both ttorney eneral and o issioner. ther notable figures fro the Bar on the Midland Circuit at that time included ugh eoghegan and dward alsh. In 1988 Charlie took the plunge and opened up his own practice in Portlaoise. felt needed to establish y own practice and also felt that Portlaoise was going to be the centre of activity in aois for the foreseeable future. is ti e as a sole practitioner was however shortlived in 19 9 he erged with two other practices ohn olger s practice and hite s to for what is now nown as olger hite gan and lanagan. hree practices beca e one which was at the time most unusual in rural reland but we ca e together and did so to good e ect. was in the ain a litigator in those days - istrict ourt ircuit ourt and personal in uries those were y areas of practice. o co plicate atters further harlie lanagan was elected to il ireann in ebruary 19 . his presented hi with a real crossroads in y legal career as politics was beco ing ore or less a full -ti e profession . t y first ever parlia entary party eeting arret it erald resigned as party leader this was so ething that was a huge disappoint ent to e personally Charlie recalls. Managing the balance between a new political career and a new legal partnership was challenging another anecdote fro his

ti e in practice illustrates this. y partners and one day decided to get to grips with our billing situation so together we reviewed all current files and rendered invoices where appropriate. few days later a client of mine came into me as and asked ‘what’s this bill for’ I replied ‘it’s for legal services rendered. The client replied ‘and what were the services - advices received said to hi to which he countered with the line ‘I didn’t follow that advice and sure haven t you got the nu ber one vote fro e anyway hat said he says the crossover in roles can be utually beneficial there s no doubt that legal training was most advantageous to e in y political career the di erence in e phasis to go bac to y idan onnell a i earlier - in law it was i portant to be both nown and trusted in politics it is i portant to be both nown and li ed that s the subtle di erence. n 2002 harlie lanagan s ourney reaches another crossroads as he loses his il seat in that year s general election. hilst it was personally wrenching and felt let yself and y party down was very luc y to be able to go back into practice. I had the same briefcase ust there was di erent papers in it. I found that I slotted back into practice sea lessly and have to say that found y partners ost understanding in that regard . he itch for political life hadn t gone away and he describes the moment he decided to a e a political co ebac . was at a funeral in bbeylei Phil ogan sidled over to e between headstones and said you re standing in the ne t election whether you li e it or not . e subse uently regained his seat in 200 and fro then on it has been an upward tra ectory. n 201 he was appointed inister for oreign airs. is ti e in veagh ouse ca e at a critical period in respect of Northern Ireland with the talks process leading to both the tor ont ouse gree ent in 201 and the resh tart gree ent in 2015. n 1 th une 201 harlie lanagan received his seal of o ce as the th inister of ustice in the history of the tate and the first aois an to hold the portfolio since evin iggins. s one would e pect he re e bers the day clearly. got a call fro the aoiseach and he said you re doing a good ob at oreign airs but d li e you to ove to the epart ent of ustice . t was a huge honour and privilege for e before stepped into the epart ent on that first day paused and re ected at a stri ing portrait of evin iggins which is on the corridor here in einster ouse. You get a real sense that Charlie Flanagan’s entire political life has been building

Summer 2019

Special Interview

Photography: Bryan Meade

towards his current inistry and whilst he doesn t e actly describe it as his drea ob it s clear that he has huge regard for his current role. he para ount concern of the epart ent of ustice has to be the security of the tate and the protection of its citi ens fro har and of course it s one of the great o ces of tate an o ce that has endured the ost di cult ti es since our independence when threats to the tate fro the Provisional and others directly i pacted on the epart ent of ustice. ne of y predecessors that ad ired ost was Pat ooney who held the ustice portfolio in the 19 0s when the tate faced the dar est threats often thin of Pat ooney when have to a e y decisions. hen as ed to describe a typical wee as Minister for Justice I’m told that there is no such thing as a typical day let alone a typical wee that said en oy the bu I have a great team working with me and the epart ent is very big - the depth and breadth of responsibility is aweso e fro the civil side you re dealing with law refor i igration the challenge of asylu and refugees and the migration challenge then you have what call the whole architecture of security prisons policing courts prison policy which was so ething was always interested in living and practising law in Portlaoise with the largest high security urban prison co ple in the ritish sles live 00 etres fro its front gate. No one issue has more dominated the ustice portfolio in the last nu ber of years than the issue of policing and the area of policing is not something the Minister pulls any punches about. he relationship between the epart ent of ustice and n rda ioch na is crucial. need of course to acknowledge both the independence of n rda ioch na and the fact that the force has been through so e very tough times in the recent past. I don’t exaggerate when say there were scandals within n rda ioch na that is unacceptable within any independent police service. really pleased that they have a new co issioner in rew arris - a an of huge e perience e pertise and integrity and his appoint ent with the very e citing report on the Future of Policing which is a blueprint for policing in reland and y a bition is that by 2022 when n rda ioch na celebrates its centenary that it will be a ong the best and ost e ective police services in the world. I’m pleased that we now have arrived at a co bination of positive events record invest ent fro overn ent 1. bn strong and e ective leadership fro o issioner arris and the reopening of e ple ore after it had been oth-balled.

Charlie Flanagan at a glance

Born in Mountmellick, County Laois in November 1956 Married to Mary, two daughters (Olwyn and Sophie) FAVOURITE SINGER: Sting FAVOURITE FILM: Once Upon a Time in America LAST BOOK READ: First Confession by Chris Patten

Turning from the future of policing to the future regulation of legal services in Ireland the Minister has a clear message for the profession. y essage to practitioners is that the ne t si onths will be very e citing y pen is at the ready to sign the various orders that will be commencing within wee s the long awaited refor s on legal partnerships li ited liability the new regulatory regi e. often felt as a practitioner over the years that it was wholly unsustainable and unsatisfactory that one body could be regulator and representative. On the question of the future of legal education the Minister professes to have an open ind but he does wish to see a profession that is ore re ective of society and the role of the solicitor as a trusted advisor within the co unity needs to be ore e phasised . n courts policy he has another essage one thing would li e to do is to introduce a new fa ily law courts regi e. a concerned at a perceived hapha ard delivery of fa ily law with particular reference to the istrict ourt. hope to bring forward legislation to establish a separate fa ily law courts regime with its own dedicated rules on practice and procedure appointing specialist fa ily law udges encouraging a greater use perhaps of alternative dispute resolution and all that of course would involve fundamental reorganisation of the istrict ourt as we now it today . On the question of developing courts infrastructure he points to the opening

of new court buildings in rogheda etter enny e ford and or as progress in this area and e presses the wish to ove on as uic ly as can to the ne t PPP bundle for regional courthouses and of course to the a ond ane develop ent. have set aside 0 to develop a ond ane for fa ily law it has been vacant for far too long and heads must be knocked together between the ourts ervice the P and ational evelop ent inance gency to fill that site. would be li e to see a ond ane be for fa ily law what the co ple has been for cri inal law a land ar signature court building . y way of parting co ent the Minister turns to the vexed issue of the Judicial Appointments Bill and its glacial progress through the ireachtas. he profession has nothing to fear from this bill it replaces a syste which has beco e arcane the passage of the bill through the ireachtas has been eopardised by ill-infor ed hype uch of the hype has resulted fro what y colleague inister oss has described as cronyis which re ect. e have been very well served by our udiciary since the foundation of the tate the record spea s for itself. is own record spea s for itself also it’s been a double life and a long road fro the illeshin otel in une 19 to overn ent uildings a road that has meandered through the vagaries of both private practice and public life. A road well travelled. P the Parchment 9

DSBA Annual Conference 19th-22nd September 2019 Lyon, France

• • • • • • •

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€935 per person sharing Visit the 2019 Annual Conference link on the DSBA website to download the Conference Booking Form

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Fifth DSBA Law Book Awards he fifth DSBA Law Book Awards, co ittees dinner and idsu er party were held in the onrad otel arlsfort errace on riday 21st une 2019. ver 200 attendees watched as President reg yan introduced guest of honour inister for ulture eritage and the aeltacht osepha adigan who spo e ovingly of her ti e in practice as a solicitor and the i portance of collegiality. he paid tribute to and ac nowledged the wor of the President ouncil and co ittees of the and recalled that in her ti e in practice she was a e ber of the a ily aw o ittee and found the collegiality of the of great assistance in practice.

hair of the udging panel for the awards eith alsh than ed the three sponsors yrne allace Peter it patric o and aw ociety illnet inuas etwor who have supported the boo awards for the past five years. e paid tribute to inister adigan s recent success in leading the es ote in the ivorce eferendu which he said would lead to a reduction in the stress for separating couples. s adigan s wor when a solicitor in producing a leading te t on and her pro inent role in pro oting ediation in fa ily law cases was also highlighted. inister adigan ade a special reference to the e ort ade by all the no inated authors and their fa ilies friends and

colleagues who supported the on the arduous ourney to co pleting their te ts which benefited the entire profession and the public. President reg yan paid tribute to the 12 voluntary co ittees of the who wor tirelessly and who have provided articles for the Parchment, sub issions on forthco ing legislation sub issions to overn ent depart ents in order to strea line and better the practise of law in those depart ents and practical guides and tips and P s to solicitor colleagues. President yan announced the following no inees for the DSBA Irish Law Book of the Year Award sponsored by yrne allace olicitors who were represented by iego allagher partner.

Nominees for DSBA Law Book of the Year

Child Law in Ireland Bracken, Dr Lydia, Clarus Press

Mediation Law McRedmond, Penelope, Bloomsbury Professional

Kelly: The Irish Constitution, 5th edition Hogan, Whyte, Kenny & Walsh, Bloomsbury Professional

Constitutional Law in Ireland Kavanagh, Dr Jennifer, Clarus Press


Essentials of Irish Labour Law, 3rd edition Faulkner, Mary, Clarus Press

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Residential Tenancies Farrell, Laura, Bloomsbury Professional

Civil Procedure in the Circuit Court, 3rd edition Karl Dowling, Susan Martin, Round Hall

EU Data Protection Law Kelleher & Murray, Bloomsbury Professional

Summer 2019

DSBA Law Book Awards


Keith Walsh; Attracta O’Regan; Mr Justice Michael Peart; Josepha Madigan, Minister for Culture, Heritage and the Gaeltacht; Greg Ryan, DSBA President

The Irish Law Book of the Year 2019 was announced by inister adigan as ogan hyte enny alsh Kelly: The Irish Constitution 5th edition loo sbury Professional.

President yan then announced the no inees for Practical Law Book of the Year 2019 sponsored by Peter it patric o egal osts ccountants who were represented by tephen it patric .

Nominees for DSBA Practical Law Book of the Year

Arbitration in Ireland – Arbitration Act 2010 and Model Law: A Commentary, 2nd edition Mansfield, Barry, Clarus Press

1961-2017 Road Traffic Legislation, 4th edition; Pierse, Bloomsbury Professional

Sexual Offending in Ireland: Laws, Procedures and Punishment Dr Susan Leahy and Dr Margaret Fitzgerald O’Reilly, Clarus Press

Woods on Road Traffic Offences, 4th edition; Clarke, Kenny & O’Sullivan, Bloomsbury Professional

The Law of Wills, 2nd edition; Dr Albert Keating, Clarus Press

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Diego Gallagher; Josepha Madigan, Minister for Culture, Heritage and the Gaeltacht; Gerry Whyte; Greg Ryan, DSBA President

Stephen Fitzpatrick; Josepha Madigan, Minister for Culture, Heritage and the Gaeltacht; Dr Albert Keating BL; Greg Ryan, DSBA President

Josepha Madigan, Minister for Culture, Heritage and the Gaeltacht and Keith Walsh 14 the Parchment

inister adigan announced that r lbert eating was the winner for The Law of Wills 2nd edition larus Press. new award was introduced by President reg yan this year President s ward for outstanding legal scholarship by a solicitor. his award was shared by usan artin for her contribution to Civil Procedure in the Circuit Court rd edition oundhall and atthew enny for his contribution to Woods on Road Traffic Offences th edition loo sbury Professional. n paying tribute to usan and atthew President yan said these awards honour e bers of the ouncil for their uni ue achieve ents in contributing to legal te ts while e bers of the ouncil and co ittees. his is a rare occasion and ust be honoured. hey deserve no less for their outstanding contributions to legal bibliography. President reg yan then introduced the final award the DSBA Lifetime Achievement Award sponsored by aw ociety illnet inuas etwor represented by ttracta egan head of professional training and aw ociety of reland. his coveted pri e is not open to no inations but selected by the udging panel of eith alsh chairperson ohn eary tuart ilhooly ine ynes in consultation with the President. Previous winners include lan hatter and rian allagher ointly r eo rey hannon r ho as ourtney i allaghan l thna uane co-editors of Law and Government a Tribute to Rory Brady and Professor ohn ylie. lthough no-one in the roo apart fro President and the udges were aware of the identity of the Lifetime Achievement Award it soon beca e apparent who it was when President reg yan entioned that he had been apprenticed to the award winner who was a car fan one of the greatest solicitor advocates and the first solicitor appointed directly to the igh ourt bench and now a e ber of the ourt of ppeal r ustice ichael Peart. n accepting the award fro inister adigan r ustice Peart too the opportunity to re ect on his years in practice and on the bench recalling that his first ob as an apprentice was to go to the Public ecords ce to locate a will for a certain person and now over 50 years later he found hi self bac where he started at the other side of his career. r ustice Peart paid tribute to the President of the reg yan for his sterling wor and leadership and co ended all those involved in co ittees and council of the as well as the aw ociety. e recalled that his own happiest and ost fulfilling years in practice were when he was involved fro 199 onwards in the aw ociety as a council e ber. he was honoured that the President of the igh ourt r ustice Peter elly attended as a guest of the President of the as well as the President of the aw ociety Patric organ who had travelled fro or President of the outhern aw ssociation ichard a ond irector eneral of the aw ociety en urphy and his wife vonne ulie are ice President of the iverpool aw ssociation nda avery President of the elfast olicitors ssociation and co ittee e bers. Keith Walsh

Summer 2019

DSBA Law Book Awards

Matthew Kenny; Susan Martin; Josepha Madigan, Minister for Culture, Heritage and the Gaeltacht; Greg Ryan, DSBA President

Greg Ryan, DSBA President; Josepha Madigan, Minister for Culture, Heritage and the Gaeltacht; Mr Justice Michael Peart; Mr Justice Peter Kelly the Parchment 15

Work – Life Balance: Weighing up the Benefits and Costs of the New Parental Leave Entitlements It would be hard to have missed the Government’s recent drive towards improved family entitlements, with the introduction of increased unpaid parental leave and the announcement that paid parental leave is on the way. Louise O’Byrne and Helen Webb set out below the new parental entitlements employers will have to provide, and some of the factors to take in to account when considering what fa ily benefits to o er your e ployees


o one would argue against the importance and benefit of both parents spending time with their children. But, inevitably there are costs involved. Will these costs fall upon employers? Should employers enhance fa ily benefits in any event to support the families of their employees, attract and retain talent, and improve diversity within the workplace?

THE NEW ENTITLEMENTS Parental Leave Unpaid parental leave is not new. Under the Parental Leave Act 1998, parents of children up to eight years old or 1 years old where the child has a disability are currently entitled to 18 weeks of unpaid parental leave provided they have one year’s service with their employer. What is new under the Parental Leave end ent ct 2019 is the length of leave parents will be able to take, and how long the entitlement is potentially available to the employee. In brief: • The parental leave entitlement is set to increase fro 1 wee s to 2 wee s. he increase is being introduced gradually the entitle ent will be 22 wee s of parental leave fro 1 epte ber 2019 1 ugust 2020 before increasing to 2 wee s fro 1 epte ber 2020 onwards. Employees who have already taken their current entitlement will be able to take the additional eight weeks of leave provided they meet the eligibility requirements. 16 the Parchment

• The leave may now be taken at any time prior to the child turning 12 years old rather than eight years old. hat does this ean for e ployers n the first instance, we recommend employers update parental leave policies to re ect the changes being introduced. Employers also need to put in place a process for keeping parental leave records which must be retained for 12 years. ployers will continue to have the ability to postpone an application for parental leave where there ay be a substantial adverse e ect on the business, but the entitlement cannot be denied. It remains to be seen whether the increase in this entitlement will lead to any change in uptake. Uptake of parental leave has historically been low given it is unpaid and requires families to be able to live on savings or one salary. During the Seanad debate for the Act, it was suggested that uptake by men is as low as 5 and it is di cult to see how e tending the period of leave will improve this.

Parental Leave – the Paid Entitlement The proposed parental leave entitlement which may have more impact, is the introduction of paid parental leave for both parents. To avoid confusing this proposal with unpaid parental leave as discussed above we shall call it baby leave on the basis this type of parental leave has to be ta en within 52 wee s of the child’s birth or placement for adoption. To date, the Government has only published the eneral che e for the Parental eave and enefit ill 2019 and regulations will supple ent this ct when

Summer 2019 Louise O’Byrne is a Partner and Helen Webb is an Associate in the Employment Law Department of Arthur Cox

passed. Under the General Scheme, it is proposed: • A parent who has one year’s continuous service with their employer shall be entitled to take baby leave for children born or placed for adoption on or after 1 ove ber 2019. • Baby leave must be taken after birth or placement for adoption and ust be ta en within 52 wee s of birth or placement. ach parent ust use it or lose it the entitle ent cannot be transferred. he tate will pay baby leave benefit at the rate of 2 5 per wee provided the e ployee has ade su cient P contributions. • Baby leave must be taken in periods of not less than one week. • Baby leave may be taken before additional maternity or adoptive leave. • All employment rights are retained whilst an employee is on baby leave and employees on Baby Leave cannot be dismissed from their employment, put on notice of termination or suspended. • Employers must maintain records of baby leave for eight years and failure to do so may lead to summary conviction and a class fine. The length of baby leave will be set by regulations but the inister for ploy ent airs and ocial Protection has announced it will commence at two weeks’ paid leave and shall increase incrementally up to seven wee s leave by 2021. n the basis baby leave is a paid benefit it is ore likely to be used by employees than parental leave.

lthough to what e tent baby leave will be ta en and whether it will be used by one gender more than another, only time will tell. Figures released in relation to paternity leave take up as compared to the nu ber of births indicate appro i ately 0 of new fathers do not ta e up this benefit. his is a crude statistic and does not take into account that certain fathers ay be unable to ta e the benefit. However, it is believed that concerns regarding career and a substantial dip in pay during paternity leave if there is no enhance ent to the tate pay ent are li ely to have a bearing on upta e. Both of these concerns would be replicated in relation to baby leave. Employers should start to consider how they can prepare for baby leave. Again a process for keeping records will need to be set up, new policies and notification procedures ay need to be prepared and an analysis of whether cover will be required if parents ta e baby leave in addition to other e isting entitlements should be carried out.

Employment Law

On the basis Baby Leave is a paid benefit it is more likely to be used by employees than parental leave

Should Employers Enhance the New Parental Entitlements? Some business representative groups are already e pressing concern about the i pact of baby leave on small businesses. Potential costs highlighted include lost productivity, administration costs, and potential short-ter recruit ent cover costs. It is also suggested there will be pressure to top up the baby leave payment. But should employers the Parchment 17

by creating a culture which recognises and respects that employees have full lives outside of work means you attract top prospective talent, particularly within millennials who prioritise e ibility and social responsibility from their employers

18 the Parchment

actively be considering enhancing the new parental entitlements in any event? Parental leave has been in place for over 20 years and it is highly unlikely that any employers will start to feel pressure to o er pay ent during this period of leave. owever over the last five years there has unquestionably been a move by a number of employers to enhance parental leave entitlements and pay during the first year of a child s life or following placement for adoption. Large tech e ployers have led the way and a nu ber o er equivalent paid leave periods for any new parent whether they are a mother or father. Diageo also recently announced its new fa ily benefit of 2 weeks fully paid leave for all of its employees entitled to take maternity leave, paternity leave, adoption surrogacy leave. icrosoft has been said to have gone even further and requires certain minimum parental entitlements by its suppliers too. hat about s aller e ployers s eport 201 which received survey responses fro 2 1 e ployer organisations found that 1 of respondents already enhance maternity pay to full pay for 2 wee s of aternity leave and a further 19.5 provide a lesser enhance ent. hile 9 of respondents to the survey also top up paternity pay to full pay for the two-wee leave period. here is no doubt that employers are increasingly enhancing new parental entitlements. Is there a discrimination argument which means employers must enhance pay during baby leave which can be ta en by en or wo en so that it is comparable with enhanced maternity pay? A similar question to this has recently been addressed by the Court of Appeal of England and Wales in the co bined cases of e tall v eicestershire Police and Capita Customer Management Limited v Ali and another. In these cases, male claimants alleged discri ination and or a breach of the e uality clause in their contract when their employer did not provide equivalent enhancements to shared parental leave pay as maternity pay. In the UK, under the shared parental leave entitlement a mother or primary adopter may end their maternity or adoption leave and share any untaken leave or statutory pay entitlement with the other parent as shared parental leave and pay. While many employers enhance maternity and adoption pay, the majority do not enhance shared parental leave pay above the statutory level. he ourt of ppeal found that di erent rates of pay for mothers on maternity leave and fathers on shared parental leave is not unlawful se discrimination on a direct or indirect basis and it does not breach equal pay requirements. The Court of Appeal held there had not been direct discrimination in the Ali case because Mr li s circu stances were aterially di erent from the circumstances of mothers on maternity leave. aternity leave and pay are a orded to new mothers to assist them with recovering from the physical and psychological e ects of pregnancy and childbirth. The proper comparator for Mr Ali was a female employee on shared parental leave, and, as such there was no di erence in the treat ent

between Mr Ali and such an employee. n the e tall case the ale e ployee argued that there was a breach of his terms of work as odified by the se e uality clause i plied by the uality ct 2010. n e uivalent provision is contained in section 21 of the rish ploy ent ualiy cts 199 to 2015. r e tall s clai was that his ter s of wor had been odified by the se e uality clause to include a ter entitling him to take leave to care for his newborn baby at the same rate of pay as mothers taking maternity leave. The Court of Appeal found that this claim failed because the Equality Act provides that the se e uality clause does not have e ect in relation to ter s of wor a ording special treat ent to women in connection with pregnancy or childbirth. 2 of the rish ploy ent uality ct 199 to 2015 also allows e ployers to confer benefits on wo en in connection with pregnancy and aternity including breastfeeding or adoption. The Court held it did not need to rule in relation to indirect discrimination, but commented that had it been relevant, the indirect discri ination clai would also have failed the aterial di erence between r e tall and a new mother meant there was no valid comparison between them for the purposes of establishing a particular disadvantage to male employees. Permission to appeal is being sought in both cases. For now at least, it is likely that the Irish courts would draw similar conclusions to the Court of Appeal of England and Wales and employers will not be obliged to enhance baby leave pay to the same level as maternity pay. Whether or not employers should enhance fa ily benefits is a co ercial uestion for each individual employer to decide. While it is di cult to gather evidence regarding the positive impacts felt by employers who enhance parental entitle ents suggested benefits include ttraction of top talent by creating a culture which recognises and respects that employees have full lives outside of work means you attract top prospective talent, particularly within illennials who prioritise e ibility and social responsibility from their employers. • Improved employee retention and reduction of turnover e ployees who are provided with time to bond with their children and support to establish family routines are less likely to leave, reducing recruitment costs and improving productivity. proved diversity childcare still falls predominantly on women and enhanced parental entitlements means female talent is more likely to be retained. proved e ployee well-being by providing employees with time to spend with their families, it improves their health and emotional well-being potentially reducing sic ness absence. • Strengthened employee loyalty and morale. Perhaps the main question employers should as the selves is can they a ord not to provide attractive parental entitlements? P

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12/07/2019 16:40

Il Presidente ow passed his half-way ar as President of the down with reg yan and they tal cars law rugby and


n a scene re iniscent of Suits he pulls up outside the o ce in a organ Plus open top vintage car. was standing at the door about to wal over to his o ce for our interview when the glea ing white car co es around the corner. op in he says as the interview of reg yan current President began fro the front seat as we went for a spin. e e plains to e while driving along the rand anal that the collecting and restoring of vintage cars is one of his great passions which he has been doing for al ost twenty years now. s he lists o so e of the cars which they have had over the years he e plains in essence we buy the cars in the bring the bac do so e wor on the drive the round and then sell the on when we yearn for another one e says they have echanics to do the technical wor but he and a friend do ost of the restoration wor the selves. t is purely for en oy ent and they don t a e any oney out of it. as whether the organ is good for a long drive and he says it needs wor . e does ention the possibility of a rally fro ondon to the south of rance which is probably on the cards in the not too distant future 20 the Parchment

arly on in his ti e at he did wor e perience in a legal practice on pper ount treet where he realised very uic ly that he wanted to ualify as a solicitor. wasn t interested in beco ing a barrister he says li e dealing with people but as a barrister your involve ent with people is li ited

illian ore

orris sits

orried that the unpredictable une weather was about to spoil proceedings and the car s upholstery we retired to the nearest hostelry where we settled down beside an open ďŹ re. e start where it began in the ublin ountains where reg grew up with his parents as an only child. e attended t olu ba s ollege as a day boarder where he played cric et and rugby. e e plains that they had a really very successful rugby tea in 1992 the best in 90 years. n the acade ic side he was good at aths physics and applied aths but when it ca e to pic ing a course in university he plu ped for law in as a safe catch all option. i es were good on the elďŹ eld ca pus where reg s conte poraries included Peter alsh and avid Phelan anaging partners of rpen ran s and ayes respectively. arly on in his ti e at he did wor e perience in a legal practice on pper ount treet where he realised very uic ly that he wanted to ualify as a solicitor. wasn t interested in beco ing a barrister he says li e dealing with people but as a barrister your involve ent with people is li ited .

Summer 2019 Killian Morris is a partner at AMOSS Solicitors and he is a member of the Parchment committee


the Parchment 21

s far as priorities go for the re ainder of his ter as president reg says points to the various sporting events that will ta e place over the su er what he describes are the best P e inars around the reason we get the good attendances at our se inars is that we have the best spea ers that is what is the ost i portant. e want to have ore se inars but we won t sacrifice on that uality that we have beco e renowned for s reg was graduating fro the e e ption fro the 1 e a s for law graduates had ust been re oved as a result of a legal challenge by students fro ueens in elfast. reg had signed up for a crash revision course for the dreaded e a s. s luc would have it there was another court challenge this ti e fro those who said they had a legiti ate e pectation of avoiding the e a s by virtue of having a law degree and hey presto the e e ption was retained for a short period. reg went straight to lac hall Place in 199 following his graduation. e was apprenticed to current ourt of ppeal udge and first ever solicitor to be appointed as a udge of the igh ourt ichael Peart. hat was a really busy o ce with lots of high-pressure litigation - the hours were long but learnt a lot he recalls wor ing there. uring his ti e as an apprentice he e plains that he received any a valuable lesson but none ore so than a otto he follows to this day - li e the carpenters say easure twice cut once. ouble chec before anything goes out . fter his training reg too a ob with rian orton in irhouse where he wor ed in a ore general practice fro 1999 to 2001. e re e bers this period with fondness as it was a far cry fro the cut and thrust of a busy and high-profile litigation practice. t was during this period that he cut his teeth with wills residential conveyancing and e ploy ent disputes all of which are such an i portant part of any solicitor s practice. r ed with great e perience reg too on his biggest challenge yet and set up reg yan olicitors in undru in 2001. hen as hi whether the thought it was a ris at the ti e he says he didn t believe so and certainly in the initial years as with ost fir s the practice was uite successful. ven though the o ce was ne t to undru arda station reg didn t specialise in cri inal law and preferred to spend his ti e 22 the Parchment

in the civil courts. eing out in undru eant long periods in the car and perhaps this is what gave rise to his interest in the vintage cars lti ately reg oved the o ce to the city centre in 201 where he has been ever since. pea ing of struggling business we get on to the topic of the how solicitors fared in recessionary reland. reg recalls that in 2009 went nine onths without having a single fee note paid. t was really bad thought it was wrong the way that people were treated that colleagues were being hung out to dry. hat is what got e involved in representation. reg oined the ole Practitioners etwor in 2009 which onia c ntee had founded at the height of the insurance crisis. thin we lost 200 odd fir s that year all conveyancers who ust ran out of road. hat organisation was really necessary and relevant at the ti e - it did great wor . e re e bers one occasion where he assisted a friend whose annual insurance pre iu had increased fro 20 000 to 1 0 000 as he had seven outstanding clai s. e anaged to get rid of ost of the clai s and which resulted in a substantial reduction in his pre iu . his allowed hi to continue in business . ast forward to 201 and reg has been installed as President of the largest bar association in the country and the running the e for the year is to i prove collegiality a ongst ublin solicitors if we don t help each other nobody else will he says. e agree about how uch easier it is to get wor done for clients when you have a good wor ing relationship with colleagues. e points to all the social events and dinners that have been organised this year to bring people together in a ore infor al setting and also to the tireless wor being done on the various co ittees in devising aster precedents that are being rolled out. e cites in particular the Partnership eed which has issued fro the Practice

anage ent o ittee a new fa ily law separation agree ent the business law co ittee s updated share purchase agree ent not to ention to the sterling wor the conveyancing co ittee have done on the hort er etting gree ent. he way we see it is if people see the docu ent co ing in and it has the sta p on it people are ore li ely to accept it and it cuts down on the di cult and so eti es long winded negotiations which can so eti es sour relations between colleagues . as hi how he finds the ti e to uggle the de ands of a busy practice the responsibilities of being the President of the and being a father of two very young children. e entions that harlotte his onth old daughter was born the day before he was installed as president. e e plains his busy routine don t sleep and start wor early at every day but have a seveninute wal fro ho e to the o ce which is handy s a e ber of the echnology o ittee of the and the aw ociety for any years yan is enthused by how technology has assisted us in our wor ing lives particularly the i prove ent in docu ent anage ent syste s over the past few years which enable solicitors to wor on the ove and not be tied to their o ces or where their files are located. hat said he does be oan the instantaneous nature of uch of this technology particularly the scourge of e ail. e entions the guidelines which the co ittees have issued over the past nu ber of years particularly in relation to what he describes as a e ail . Previously if you received so ething you didn t li e you dictated the angry response but by the ti e it ca e bac fro your secretary you had ti e to cal down and re ect and you would probably edit the letter down to so ething less in a atory . t is self evident that these types of co unication don t help the cause of collegiality especially when colleagues are under increasing de ands fro clients but it ay be sy pto atic of another proble he says thin we do have a proble in the profession as we can often be poor co unicators and uch of this ste s fro wor pressures and the constant on nature of legal practice today and he e plains that this i pacts on dealings with colleagues and clients ali e. e discuss whether there is erit to having students and solicitors having for al training around real life client care situations including real tips and tric s as to how to avoid di cult situations happening in the first place and perhaps we

Summer 2019


Photography: Bryan Meade

have an idea for a new P progra e he concept of i proved collegiality is echoed in reg s love for the ga e of rugby and in particular his willingness to follow his beloved einster wherever they go. ugby teaches you so any great things about values and being in a tea culture. hen as does he thin that the ga e is getting too dangerous he thin s no it is no ore dangerous than other sports and as with everything else there can be occasional accidents. e is uite happy that his own children will play rugby when the ti e co es and he entions that his three-yearold son en attended his first ga e when he was ust one and he was in the to support the blues for the atch against oulouse this year. reg hi self entions that his own first ga e was as a si year old in 19 and that he now has a season tic et where he attends all the ho e ga es with a group of eight others. hey also travel to so e of the away ga es the ost recent one being the disappointing defeat to aracens in the ha pions up inal at ewcastle. nsurprisingly reg s ost e orable sporting o ent was the eine en up inal iracle atch in 2011 versus ortha pton. n the day einster were down 22- at half ti e and reg recalls being surrounded by opposition fans who at half ti e were erciless in their slagging of reg and his pals. ast forward 0 inutes and einster had won the trophy in one of the greatest sporting co ebac s ever seen by an rish tea that was a really great day he recalls the at osphere in the illenniu tadiu with fondness. s far as priorities go for the re ainder of his ter as president reg says points to the various sporting events that will ta e place over the su er what he describes are the best P e inars around the reason we get the good attendances at our se inars is that we have the best spea ers that is what is the ost i portant. e want to have ore se inars but we won t sacrifice on that uality that we have beco e renowned for. e also is particularly proud of the representative wor which the is doing in relation to the egal ervices egulation ct and Ps. o round it all o reg is particularly e cited about bringing 120 solicitors to the sellout annual conference which ta es place this year in yon rance. hen as reg what he will do when he hands bac the chain of o ce he o ingly uips that he ight reta e up golf. h and ll probably start running again that s another great hobby of ine li e to run arathons he tells e. reg began running


races then 10 races then half arathons and finally he decided well isn t it logical that ight do a arathon . fter 2 arathons in five years reg is an ious to eet the ne t challenge head on - now do it in fancy dress the va pire in the ublin arathon and have been for the last four years and those with eagle eyes will notice that he s currently pictured in his racula costu e on the front cover of the arathon uide. f course for anybody to have done as any arathons as reg in such far- ung

places as hicago and the ordeau edoc wine region there has to be a new challenge. e entions doing an ultra- arathon and in particular the o rades race fro urban in outh frica. or the uninitiated o rades is the oldest ultra- arathon in the world a 90 run which is not for the faint hearted. reg hopes to be in outh frica at the sa e ti e as the ritish and rish ions in 2021 which would o er a great opportunity for hi to ta e part in the race. he only uestion is whether the va pire gear will a e the trip P the Parchment 23

Attention Landlords! New Residential Tenancies Act Update he esidential enancies end ent ct 2019 the ct was signed into law on 2 th ay 2019. any of the provisions have since co e into e ect. liver it gerald su arises the tougher tenant protections e tensive investigative powers and sanctions for landlords in the new legislation

andlords should be aware of the following ey changes:

1. TERMINATION OF TENANCIES BY LANDLORDS he ct has introduced new rules which will i pact on landlords ter inating tenancies. he new rules ca e into force on th une 2019 and are set out below.

Longer Notice Periods andlords will be re uired to co ply with new notice periods when ter inating a tenancy with signiďŹ cantly longer notice periods re uired for tenancies lasting between si onths and seven years. he following is a co parison of the old and new notice periods Previous Notice Period

New Notice Period


2 days

2 days

or ore onths but less than 1 year

5 days

90 days

1 year or ore but less than 2 years

2 days

120 days

2 years or ore but less than years

5 days

120 days

years or ore but less than years


1 0 days

years or ore but less than 5 years

112 days

1 0 days

Duration of tenancy ess than

24 the Parchment

5 or ore but less than years

1 0 days

1 0 days

or ore but less than years



1 0 days

or ore but less than years

19 days

19 days

22 days

22 days


ore years

Requirement to Serve a copy of the Termination Notice andlords ust send a copy of the ter ination notice to the esidential enancies oard no later than 2 days after the e piration of the notice period. he rules relating to so e of the ter ination grounds have also been revised further as su arised below.

Termination for Reason of Sale here a landlord wishes to end a tenancy in order to sell the property the landlord ust enter into a contract for sale of the relevant property within nine onths of the ter ination date e tended fro three onths . f this does not happen the landlord will be obliged to re-o er the property to a for er tenant providing the tenant has given the landlord their contact details.

Termination for Reason of Occupation by Landlord or Landlord’s Family Member he legislation provides that where a tenancy has been ter inated on the basis that the landlord re uires the property for their own occupation or that of a fa ily e ber and where the landlord or fa ily

Summer 2019 Oliver FitzGerald is a partner in the real estate team at Mason Hayes and Curran

e ber then vacates the property within one year that property ust be re-o ered to the for er tenant. his is providing that the for er tenant has given the landlord their contact details. hile this obligation e isted already the ct has e tended the relevant period fro si onths to one year.

Termination for Reason of Substantial Refurbishment he ct provides that where a tenancy has been ter inated on the basis that the landlord intends to carry out substantial refurbish ent the property ust be o ered bac to the for er tenant on co pletion of the renovation wor s if the property beco es available for reletting this was previously li ited to where the property beca e available for reletting within si onths of the ter ination date . he ct also re uires the landlord to produce an architect or surveyor s certiďŹ cate conďŹ r ing that for health and safety reasons the tenants are re uired to vacate the property for a ini u of three wee s.

Termination on Grounds of Change of Use he ct has e tended the ti e period where a tenancy is ter inated on the grounds of change of use. f a property beco es available for reletting within 12 onths of the ter ination date previously si onths a landlord will be obliged to o er the property bac to the tenant providing the tenant has given the landlord their contact details.

Landlord & Tenant Law

2. RENT CONTROLS Designation of Rent Pressure Zones (RPZ) he ct provides that the e isting P designations will be e tended to 2021. his will include i eric city east and avan which were recently designated as P s. he ct also introduces changes to how the average rent in the tate is calculated for the purposes of P designations by e cluding the average rents in the ublin area or the greater ublin area fro the calculation of the average rent. ince the changes have been introduced 19 ore areas have been designated as P s with the total now standing at 2. list of the P s can be found here.

Exemptions from the RPZ Rent Restrictions Properties not let within the previous two years he ct re oves the current e e ption fro the annual cap for new properties within an P with e ect fro une . Prior to the ct the rent restrictions did not apply to properties which had not been let at any ti e during the two years before the area was designated as an P . nder the new legislation the rent restrictions will not apply when the rent is ďŹ rst set in the case of a property that has not been let within two years before the tenancy concerned co ences. owever the restrictions will apply to any subse uent settings of the rent.

here a landlord wishes to end a tenancy in order to sell the property the landlord ust enter into a contract for sale of the relevant property within nine onths of the ter ination date the Parchment 25

t will be a cri inal o ence for a person to withhold destroy conceal or refuse to provide any infor ation or records for the purposes of any investigation to fail or refuse to co ply with any re uire ent of an authorised o cer or to otherwise obstruct an authorised o cer in the perfor ance of his her functions

Substantial change to the nature of the accommodation he ct also provides a new definition of what constitutes substantial change in the nature of the acco odation provided which landlords ust satisfy in order to ualify for an e e ption fro the P rent restrictions. Previously the eaning of the phrase substantial change had been unclear. he ct rectifies that position by introducing a new definition of what constitutes a substantial change with e ect fro une. n order to ualify as a substantial change the change ust involve either i a per anent e tension to the dwelling increasing the oor area by at least 25 or ii an i prove ent in the uilding nergy ating by seven or ore ratings or iii at least three of the following per anent alteration to the internal layout n adaptation for use and access by persons with a disability per anent increase in the nu ber of roo s n i prove ent in the by three or ore ratings where the is 1 or lower n i prove ent in the by two or ore ratings where the is or higher. n all cases the wor s involved ust not consist solely of wor s that the landlord is obliged to carry out in accordance with their repairing obligations under the esidential enancies cts. otably the new substantial change re uire ents will not apply to wor s already underway before the legislation ca e into e ect.

New Notification Requirements andlords relying on an e e ption fro the P rent restrictions on the grounds that the property has not been let within the previous two years or on the substantial change e e ption will be re uired to serve a notice on the within one onth of setting the new rent. he notice together with all relevant supporting docu entation ust include the reasons why the e e ption applies and ust specify the a ount of the new rent set and the last rent set. he new notification re uire ents ca e into force on 1 uly 2019. he re uired for of notice is as set out in the esidential enancies ct 200 Prescribed or egulations 2019.

Frequency of Rent Reviews he restriction on rent reviews to every two years which applies to properties outside P s was due to e pire in ece ber 2019. his has been e tended to the end of 2021.

3. Investigations, Sanctions and Offences New Offences t will be an o ence for landlords to ail to co ply with the P rent restrictions with e ect fro une nowingly or rec lessly provide aterially false or isleading infor ation to the in connection with a notice of reliance on an e e ption fro the P rent restrictions as set out in paragraph 2. above with e ect fro 1 uly ail to co ply with the notice re uire ents as set 26 the Parchment

out in paragraph 2. above with e ect fro 1 uly and ail to co ply with a notice fro the to update rent infor ation on the register after a rent alteration with e ect fro 1 ay .

Investigative Powers and Power to Impose Sanctions he ct provides for new powers for authorised o cers decision a ers and the to deal with co plaints carry out investigations conduct oral hearings and i pose sanctions on landlords for i proper conduct . hese new powers ca e into e ect on 1 uly. proper conduct is defined as including breach by the landlord of the P rent restrictions ailing to notify the that the landlord is relying on an e e ption fro the P rent restrictions ailing to register a tenancy ailing to notify the of an alteration in the rent set under a tenancy tte pting to rely on an e e ption fro the P rent restrictions where an e e ption does not apply iting a reason for ter ination that the landlord nows to be aterially false or isleading ailing to re-o er a dwelling for letting to a for er tenant where any of the circu stances outlined at paragraphs 1. to 1. above apply. t will be a cri inal o ence for a person to withhold destroy conceal or refuse to provide any infor ation or records for the purposes of any investigation to fail or refuse to co ply with any re uire ent of an authorised o cer or to otherwise obstruct an authorised o cer in the perfor ance of his her functions. anctions for i proper conduct by a landlord include any one or all of the following Pay ent of a financial penalty of up to 15 000 to the Pay ent of the costs of the of up to 15 000 written caution to the landlord. urther appeals and applications ay be brought to the ircuit ourt and the decision of the ircuit ourt can only be appealed to the igh ourt on a point of law. he ct allows for a landlord to a e an ac nowledge ent of the i proper conduct and this will be ta en into account in the level of sanction issued. here separate cri inal proceedings have been brought for an o ence which is also a for of i proper conduct an additional sanction under the legislation will not apply. n other words landlords will not be doubly penalised.

Conclusion his ct is a further refor in the overn ent s strategy for the rental sector and has been described by so e as radical. andlords should be aware that these changes are in line with the overn ent s long-ter strategy to ove to tenancies of indefinite duration and to continue to enhance rental sector regulation and alleviate concerns surrounding the housing crisis. P


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Simone Says

In July 2010, Simone George was a commercial litigation solicitor in a big fir and only four wee s away fro her wedding to blind adventurer ar Polloc when their world was turned upside down after he fell fro a second storey window bro e his bac and was left paralysed. ince then she has added wor to find a cure for paralysis to her hu an rights and co ercial litigation practice. tuart ilhooly spo e to the outspo en ca paigner about grief hope and changing society s nor s


cceptance is nowing that grief is a raging river. nd you have to get into it. ecause when you do it carries you to the ne t place. t eventually ta es you to open land so ewhere where it will turn out o ay in the end. i one eorge al 201 . he end isn t always the best place to start. ut so eti es we need to s ip to the last page on the boo ust to be sure it turns out alright. here are still several ore volu es to write in the e traordinary life stories of i one eorge and ar Polloc but it s co forting to now that at the end of boo one our heroes are still battling and loo ing for ore fights to win. uch has been written about her partner ar Polloc both before and after his lifechanging spinal cord in ury and while i one wor s with ar in the fight for a paralysis cure the focus has tended to be on her as a partner rather than as a ca paigner lawyer and thought leader in her own right. hen a e the approach for this interview she s enthusiastic but ensconced in her latest pro ect in ew or . e agree to spea by the less than reliable ediu of

28 the Parchment

here are still several ore volu es to write in the e traordinary life stories of i one eorge and ar Polloc but it s co forting to now that at the end of boo one our heroes are still battling and loo ing for ore fights to win

aceti e but once we are up and running she is engaging dyna ic and brutally honest. urrently in ew or as a visiting scholar in olu bia niversity s law faculty she has nearly co pleted a si - onth stint researching what she calls a piece of literary non-fiction about the cultural inheritance of violence against wo en and of desire . t arose out of an encounter with loria teine at the est or iterary estival. loria led a tal ing circle and during it i one traced her fe ale lineage fro her grand other s birth in the ahara desert under rench colonial rule to her life now as a hu an rights lawyer raising a uestion about the evolution of the relationship between power and violence. he worldrenowned fe inist writer as ed her here is that story written an you write it for e please would li e to read it. i one said that she would try and true to her word the last si onths at olu bia niversity have been another heady cli b on the rollercoaster of the last nine years. n fact to call it a rollercoaster is an understate ent. ollercoasters have a series

Summer 2019 Stuart Gilhooly is a former President of the Law Society and DSBA. He is a partner at HJ Ward Solicitors Harold's Cross and a former editor of the Parchment

Cross Examination

the Parchment 29

or the self-professed egaphone fe inist to be the first rish wo an to spea on the ain stage was a huge honour. n fact she and Polloc are only the third and fourth rish people ever to spea on the ain stage of violent ups and downs and then they end with everyone getting o and going about their nor al lives. n i one s case volatility and e tre es of e otions is nor al life. hen she et ar Polloc he was a blind e tre e adventurer. e had run arathons in the ost e traordinary conditions and was setting hi self up for ore. he e ect of his fall and the toll it too on their relationship is told in an e otional hu orous but gut-wrenching tal released in epte ber last year. t has been translated into 1 languages and already has over 1.5 illion views and counting. or the self-professed egaphone fe inist to be the first rish wo an to spea on the ain stage was a huge honour. n fact she and Polloc are only the third and fourth rish people ever to spea on the ain stage after ono and so ewhat bi arrely eith arry. ens of thousands of people apply for every year and if pic ed you are nor ally told well in advance and they wor with you on your tal preparation. e were at a conference in t orit and noticed that hris nderson the curator was there. e et over dinner and he invited us to spea at sub ect to his tea s approval. e wanted both of us to tal about shared resilience. he tea approved and while i one was running two commercial court cases, as well as her fa ily law practice they were invited to spea in ancouver. espite only eight wee s notice and their heavy wor load they new that opportunities li e this tend to co e noc ing only once. hey had to ta e it. tal s cannot be longer than 1 inutes long so it is very uch a synopsised account of the e ect of his fall their initial devastation her research into the science of the potential paralysis cure and their ulti ate acceptance that life would never be the sa e but to believe it can get better. t is clearly delivered fro the heart and any of the viewers will have found so ething in their eye long before the end. hile she is best nown because of her oint public profile with Polloc for the tal the recent o y iernan how and appearances as well as the hugely 30 the Parchment

popular docu entary Unbreakable her wor with hi as a paralysis cure hunter is only part of who she is. he describes herself loosely as a hu an rights activist but ore specifically she is a fe inist and passionate advocate for the rights of wo en who have been victi s of violence. t wasn t always that way though. conventional education saw her begin on a path that was relatively ainstrea . orn in illiney she went to illiney ational chool and then on to athdown before defying her teachers in athdown by going to the alway for an out of ublin e perience which she loved. bachelor in corporate law was followed by an and she was subse uently accepted to do a asters in uropean law at the ollege of urope in ruges. lthough she had secured an apprenticeship with oodbody she postponed it with the assistance of sage advice fro the partner then in charge of training arbara otter. ruges professor had o ered her a ob in P olar in pain wor ing on public and private partnerships between urope and frica. arbara was instru ental in such a good way. he said - it s a blue-chip co pany an incredible opportunity. o e to us when you are ready. fter two years her training contract was still available and she returned to fulfil the usual role of trainee before ualifying in the early noughties. t that point she was placed in the e ploy ent law depart ent but found it hard to en oy the wor . he wanted to wor in dispute resolution and she was spending her days drafting ter s and conditions and never getting to court. his led her to yons enny where she was better suited to a s all fir . did plainti personal in ury wor where learned everything you need to now about litigation because you are in court about three ti es a wee . also inherited esidential nstitution edress oard files and fa ily law cases so had to teach yself and learn fro the barristers and others in the o ce how to run those sort of files. loved both the clients and the wor . hat was when said - this is why studied law in the first place this is what want to do.

fter four years there she too a role in co ercial litigation with yrne allace which co enced about two onths before the eh an rothers collapse. onetheless litigation continued and she was running co ercial court cases there until ar s accident in uly 2010. verything was put on ice. ar spent 1 onths in hospital and i one was out of wor for a year on co passionate leave. hey never did get arried but she is sanguine to the point of dis issive about it very relationship is vulnerable whether you are arried or not. fter a year bac in yrne allace following her 12 onth absence with ar in hospital she left with a plan to figure out what she wanted to do with her life. urned out that life was out there waiting for her and landed in her lap in the for of a re uest to carry out research recording wo en s e periences of the rish legal syste when they have to use it to try to halt abuse and violence. ith it also landed a co ercial court in unction and the case that followed with i one acting as a consultant litigator to a bouti ue corporate practice. nd this has been her life and her wor since then. don t have a brass plate a a freelance litigator. here are corporate practices around the city that don t need a full-ti e litigator. go into these practices and run co ercial court cases for the . or the client it s good because it s li e in-house with the because don t have 50 files on the go at any one ti e. also run y own fa ily law practice. nd then there s y public policy wor . t helps to have the freedo to pursue her wor changing the culture of violence against wo en and the holy grail of a paralysis cure. he research beca e a report entitled The Lawlessness of the Home for the domestic violence NGO afe reland. t then led to her co-creation with the of an international su it in the ansion ouse in 201 which itself fed into the co ing together of civil society and political advocates who created and secured the significant a end ents to the draft bill that has beco e the o estic iolence ct 201 . he describes it as possibly the ost fit-for-purpose do estic violence legislation in the world. t was a powerful e perience to contribute to changes to the law that could see in y practice were deeply destructive to the lives of our clients. or e a ple the yth of a threshold of abuse re uired for a udge to a e a do estic violence order under the previous ct. ow udge ose ary organ had been highlighting this

Summer 2019

Cross Examination

Photo: Ryan Lash TED

fro the ti e of her practice as a solicitor as deeply proble atic. e have to wait and see how and if the new ct wor s in practice . ast year her wor with her esidential nstitutions edress oard clients earlier in her career inspired her to oin nesty irector ol or an and others in creating tand or ruth an act of solidarity with those who had e perienced abuse by the institutional atholic hurch. s the Pope said ass in the Phoeni Par 000 people gathered at the arden of e e brance as o ier and ary oughlan sang and arian eyes and race yas spo e along with others before everyone silently arching to the site of the last agdalene laundry in rish public ownership. hile doing this wor though life goes on. nd it is a bittersweet i ture of hope grief e cite ent drudgery and love. hat ay sound li e a icrocos of ost lives but that doesn t ta e into account the assive e tre es and a routine that loo s very di erent to the average. t has been really hard. t has been devastating ve been incredibly sad figuring out how to process grief every new grief has ar s accident as an attach ent to it.

nd it has also been full of oy achieve ent and e cite ent. or instance we went to the hite ouse to eet the ba as of all people. e travelled fro where we were doing a paralysis cure pilot study. e were dealing with ar s wheelchair we had no assistance at the ti e so was pushing hi around getting hi into a ta i brea ing down the chair building it up again. hat s why we say in the tal you have to run acceptance and hope in parallel. hey are both with you all the ti e. od it s a a ing we are going to the hite ouse to eet ichelle and arac ba a but ar is paralysed this is terrible our lives have changed. he always turns the conversation bac to how ar is the one su ering the ost and this is undoubtedly true but it is easy to forget about the rest of the herd and as she says paralysis ta es the whole herd down with it . e don t tal uch about the people around the bed. o ar and are nearly finished writing a boo . e are both writing separately about our e perience of the last nine years since the fall and we are not tal ing to each other about what we are

writing. e thin it will be useful for the reader to hear both voices separately. t s i possible to now for sure where i one would be if the window on the second storey of that house had been closed that night. he is certain however that her wor as a lawyer would have ulti ately returned to her passion hu an rights. his is why beca e a lawyer. hese are y values. was inspired as a teenager by ary obinson s legal career with how she shaped our constitution. y aster s thesis was on the legality of positive discri ination. ar s accident gave e a shoc ing re inder that we get one go at life but without that shoc now was heading towards that wor anyway. ust had to figure out how. t has been an arduous ourney fro the dar est of days as ar lay wondering whether he was going to live or die. he steered hi away fro the reeds as she dived into the raging river of grief with hi to find acceptance and swi to open land and hope. any ore voyages lie ahead possibly into ore uncharted waters but you can e pect i one eorge to lead the ho e. P the Parchment 31

Whistleblowing Protection to Expand in the EU On 16th April 2019 the EU Parliament adopted the directive on the Protection of Persons eporting on reaches of nion aw the directive . nne yne outlines why this is a significant develop ent for whistle blowing protection in urope and ore especially for reland once the directive is i ple ented in individual e ber states. t will allow a ore unifor approach to whistle blowing across the by providing safe channels for an individual to air certain grievances in relation to EU law


ecent scandals such as a bridge nalytica and the Pana a papers have shown the benefit to the general public of an individual blowing the whistle and that citi ens should not be fearful of retaliation for e posing wrongdoing. n any respects the directive does not diverge greatly fro the current regi e available to wor ers under the Protected isclosure ct 201 the 201 ct so the syste is already fa iliar to us. ndeed in a press release fro 11 uly 201 in advance of the adoption of the directive the epart ent of Public penditure and efor announced that reland already had co prehensive whistle blowing easures in being and was well placed for the directive. his article brie y e plores so e of the ey areas where the directive mirrors and diverges from the current protection a orded to wor ers under the Protected isclosure ct 201 the 201 ct .

SCOPE OF THE DIRECTIVE Material Scope or a wor er to be protected under the 201 ct the sub ect atter of their disclosure ust refer to one or ore relevant wrongdoings. hese are specifically defined in section 5 of the legislation as a o ences that are or are li ely to be co itted b failing to co ply with legal obligations c iscarriage of ustice d health and safety ris s including ris s to the public as well as other wor ers e da age to the environ ent f the unauthorised use of public funds or resources g oppressive discri inatory or grossly negligent action or inaction by a public body h infor ation showing any atter falling into categories above ay be destroyed. The whistle blowing directive will expand the scope of wrongdoings and will include breaches of corporate ta rules or arrange ents whose intention or purpose is to defeat the ob ect or purpose of the applicable corporate ta law product safety transport safety financial services and prevention of oney laundering 32 the Parchment

a ong others. he directive provides e ber states with discretion to e pand further on these areas. he directive has a broader focus on areas of law that have -wide applicability rather than local e ber state laws.

Personal Scope nder the 201 ct a protected disclosure can be ade by e ployees for er e ployees trainees wor ers under service contracts agency wor ers and a person underta ing wor e perience for a training course progra e or training for e ploy ent with so e e ceptions. rticle of the directive e tends the above list and the whistle blower or reporting person is defined in the directive as a natural person ac uiring the relevant infor ation in a wor -related conte t. his would include shareholders and people within the ad inistrative anage ent or supervisory body of an underta ing including non-e ecutive e bers as well as volunteers and paid or unpaid trainees . he list also includes those whose wor -based relationship is yet to begin who ac uired infor ation during the recruit ent process or pre-contractual negotiations .

Scope of Protection he 201 ct provides that the wor er ust have the “reasonable belief ” that the relevant information tends to show one or ore relevant wrongdoing. he conditions for protection set out in the directive are si ilar to those in the 201 ct. he directive states that a person ust reasonably believe that the infor ation reported was true at the ti e of reporting and fell within the scope of the directive. dditionally the person ust have followed the procedures set out in the directive regarding reporting internally e ternally or directly e ternally or publicly disclosed infor ation.

Procedures for Reporting or Making a Disclosure he reporting syste under the directive is structurally si ilar to the current rish legislation

Summer 2019 Anne Lyne is a partner in the employment department of Hayes Solicitors

internal reporting e ternal reporting and public disclosure. he directive envisages in ost cases a report would be ade internally first. he ey divergence fro the 201 ct is that both public and certain private entities will be re uired to have internal reporting procedures. urrently under the 201 ct only public bodies are re uired to have procedures to facilitate protected disclosures. nder the directive private entities with 50 or ore e ployees are re uired to have internal procedures to deal with reporting. ntities with between 502 9 e ployees can share resources regarding receipt and potential investigation of such reports. t is andatory regardless of si e for entities in the areas of financial services prevention of oney laundering or terrorist financing to have internal reporting channels. dditionally e ber states can re uire entities with less than 50 e ployees after co pleting the appropriate ris assess ent to create internal reporting channels. he internal report procedures ust facilitate e ployees a ing reports in writing orally or on re uest in person. he directive further states that channels for receiving reports ust be secure and ensure confidentiality of the reporting person and third parties entioned in the report. Internal reporting can be sidestepped where the reporting person has valid reasons to believe he or she will su er retaliation or the co petent authorities are best placed to ta e e ective action or there is ris that evidence ight be concealed or destroyed or internal reporting could eopardise subse uent investigations. urther a person can report e ternally where the entity does not respond within the three months or internal channels are e hausted and no appropriate action was ta en. o a e a public disclosure the reporting person ust first follow the stepped approach or can go public directly where there is an i inent danger to the public interest.

Protection for the Reporting Person/ Whistle Blower nder the 201 ct a wor er cannot be dis issed penalised or threatened to be penalised for a ing a protected disclosure. wor er can receive up to five years co pensation for an unfair dis issal related to whistle blowing. Article 19 of the whistle blowing directive prohibits any for of retaliation for reporting or a ing a disclosure including threats and atte pts both direct and indirect. his includes suspension lay-o dis issal de otion or withholding pro otion transfer of duties

EU Law

change of location reduction of salary or change of hours and negative perfor ance assess ent or e ploy ent reference a ong others. he e ployer ust prove the action ta en was not in retaliation for the reporting or disclosure. Article 23 of the directive provides that member states shall provide for e ective proportionate and dissuasive penalties regarding retaliatory easures against a person a ing a report or disclosure. he member states are directed to establish penalties as well where it is established that a person nowingly ade a false report or public disclosure. rticle 2 further states that e ber states ust provide for easures for co pensation relating to da ages fro such reporting or disclosure. nder the directive a ing a report or disclosure serves as a defence in proceedings including defa ation breach of copyright breach of secrecy breach of data protection rules disclosure of trade secrets and co pensation-based re uests based on private public or collective labour law. f a person a es a report e ternally or public disclosure he or she is e e pt fro liability for breaches of any restriction on disclosure. lthough there are co parators in the e ploy ent law conte t it is unclear how redress will be easured in Ireland where a shareholder is retaliated against for a ing a report or disclosure. enerally in the e ploy ent conte t co pensation is calculated based on wages which will be di erent to establishing appropriate shareholder co pensation. t will be interesting to see how the Irish whistle blowing legislation will be a ended to address this issue in light of the directive.

Implementation of the Directive in Ireland and Impact The impact of the directive will be felt in the private sector given the wider scope of the directive compared to the e isting syste in place. lthough the directive has yet to be approved by the ouncil of urope companies coming within the scope of the directive should begin reviewing their policies to loo to implement appropriate reporting channels where necessary. o panies should consider whether any existing practices are in breach of the directive or if policies could be potentially dee ed retaliatory under the directive. t is clear that the introduction of the directive signals a mindset change towards whistle blowers and an ac nowledge ent at an level of the public value that they bring. P

Internal reporting can be sidestepped where the reporting person has valid reasons to believe he or she will su er retaliation or the competent authorities are best placed to ta e e ective action or there is ris that evidence might be concealed or destroyed or internal reporting could eopardise subse uent investigations

the Parchment 33

Photography: Michael Finn

DSBA Golf Society The DSBA Golf Society held an outing at the Luttrellstown Castle Resort Golf Club on 20th June 2019. A most enjoyable day was had by all. Membership is open to all and application forms are

Patrick White; Paul O’Reilly; Bob Connolly

Fiona Duffy; Mary McAlinden; Yvonne Malone

Graziano Romeri; Gavin McAlinden; Pat Coady

Eileen Kelly; Christine Scott; Colleen O’Neill

Richie Bennett; Jim Malone; David Tansey; Hugh O’Neill 34 the Parchment

available fro aura ith at the o ce. The next outing is Thursday 12th September 2019 for the DSBA Captain’s Prize. The venue is Milltown Golf Club.

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Paul Murran; Paul Foley

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Family Lawyers Need to be Aware of their Mental Health olicitors often underesti ate the e ect trau atic cases can have on the and ay not be aware of their own reactions to di cult cases and challenging clients. Noreen Maguire takes a closer look

C If the solicitor gets drawn into the drama around the client and the case, ‘mirror neurons’ are activated. This is where the solicitor copies their client’s behaviour in more than just the body language

36 the Parchment

aoimhe Nic Dhómhnaill is a psychotherapist and child psychologist. We invited Caoimhe to speak at a recent family law DSBA seminar and her approach was very insightful. It highlighted to those of us with no formal training in psychology or otherwise, that we often forget the struggle of dealing with sometimes extremely sad, fa ily law brea -ups. n this article have outlined y lay-wo an s interpretation of her tal described di erent personality traits that ay present in clients the ways we might handle such clients and most importantly, our reactions to client behaviour and developing ways to deal with it.

Conflict n a fa ily brea -up situation con ict has a particular role to play and we learned how not all con ict is bad. lients often use con ict as a defence against anxiety and disappointment. In other words, we should understand that it is frequently an essential component of the brea -up process. hat is i portant is for us lawyers to be aware of how we respond to our clients’ behaviour. Caoimhe outlined that when we work with high con ict personalities they can a ect our capacity to think and it is imperative that we recognise this and that we develop so e for of self-awareness around our own reactions to clients.

Traits Every client will have their own story and sadness to carry. How they deliver that story to their solicitor will depend on their personality traits: • Caoimhe gave examples of clients with “borderline personality disorders . or e a ple if they have su ered abandon ent during their childhood they tend to get very upset if their solicitor does not give the su cient attention. hen we forget to return a call or are simply too busy to return a call,

that particular type of client can take it personally and uic ly transition fro being a needy client to being a disgruntled client. • We have all come across the narcissistic personality, the one we might be tempted to try to bring down a peg or two! We need to be extra vigilant with this client because their personality is built on a very fragile ego. hey ay have high notions so to speak, and use this as their defence mechanism but if you try to burst their bubble, they will be enraged and insulted. Caoimhe cautions us to “handle with care this type of client. • We were also given an example of what Caoimhe labelled a histrionic defence personality where a client insists on continuously telling their story. It is essential for this type of client to feel heard and the client feels reassured if they believe that their solicitor is taking the time to listen to their story. • Caoimhe explained how some personalities deliberately create an e ternal chaos . hey pro ect their tur oil outside of the selves and by o oading it they re able to aintain an internal cal . e presume this type of person does not consciously know they are doing this. The problems arise when that e ternal chaos rubs o on their advisers. he outlined the dangers of the high con ict personality and their ability to project their chaos on to their lawyers, and while the client may now feel better and cal er they have sent their own lawyers into a ap

Response We then examined how solicitors respond, say for example, when they’re on the receiving end of this e otional o oad. aoi he beautifully called this counter transference . s a result of counter transference, the solicitor can no longer think straight. She said “the projection of disorganised internal states hinders the solicitor’s capacity to think clearly in an

Summer 2019 Noreen Maguire is principal of Maguire Muldoon Solicitors. She is a member of the DSBA Family Law Committee

ob ective anner . he gave the e a ple of an adviser being particularly vulnerable to this, if they over identify with a client or a situation. Is the solicitor themselves relating back to their own personal circumstances? Opening up old wounds? Apparently, we can recognise this is happening when we’re overly tenacious with a case. Caoimhe warned us to be wary if we re finding a file particularly di cult to get through - one should uestion why what is the real reason we re finding the file so i possible to progress If the solicitor gets drawn into the drama around the client and the case irror neurons are activated. This is where the solicitor copies their client’s behaviour in more than just the body language. If unchecked, apparently, we can emulate the client’s neurological pathways.

Solution? So, what is the solution? How do professionals protect their mental health while continuing to provide a professional service for their clients? The answer; we calm the situation down before it even starts. She referred to empathy, attention and respect, ‘EAR’. We lend clients our ‘EAR’. Outline to the client in a realistic way what can happen with their case. Do not promise outcomes that we can’t predict. Realistically, as we all know, there are no winners in a family law

Family Law/Mental Health

case. It is a hard area of law to practise in as our clients are going through a hugely stressful life event it is fundamentally a sad occasion.

Protect Yourself inally the ental toll on professionals should not be underestimated. We are warned against stress hormones which we’re told are contagious! When our reptilian brain is activated the e ect is elevated levels of cortisol and adrenaline pulsing around the body. elf-soothing techni ues can so eti es end up being counterproductive; such as comfort eating, drinking or over use of technology. Caoimhe suggested we use healthy strategies to cal ourselves down get into our happy place so to spea by e ercising reading gardening spiritual practice life-giving activities. Whatever gives you space in your head for fun, enjoyment and time to allow healing.

Chill Out So, the next time you come out of Phoenix House, slow down, check yourself and breathe. Have you allowed your client’s stress transfer across? Are you feeling particularly anxious, strained or cross? Awareness of your feelings and your reactions to those feelings is crucial. earn to be aware you have a duty to your client and more importantly to yourself. P the Parchment 37

Succession Planning for Businesses Sandra Meade and Robert Burns assess some options available to individuals looking to sell their business or retire

H An open market sale is an attractive option in that the shareholders receive the value of the goodwill built up in the business over the years

aving set up a pension fund, many people leave the retirement plan dormant until they are close to retire ent. t can be beneficial to review the “exit” plan at various stages in a working life, and it is advisable for a taxpayer who owns a business to start planning his or her exit from work at least 10 years before actual retirement. This allows a taxpayer time to put a business succession plan in place and arrange a airs e ciently to avail of ta relief where possible, on the exit from the business.

Options for Exit Traditionally the ways in which an individual exits from a trading company are as follows: 1. Transfer to a family member 2. Management buy out 3. Open market sale 4. Liquidation. Each of these options is set out below.

Transfer to a Family Member If there’s a family member interested in carrying on the business, then the interest in the business can be transferred to that family member. CAT business relief may be available if there is a gift element to the transfer. CGT may arise for the vendor and this may be mitigated by claiming entrepreneur relief or retirement relief. Stamp duty may also arise for the purchaser.

Pass to Business Colleague – Management Buy Out (MBO) This option is only available if there’s a management team active in the business at a relatively senior level 38 the Parchment

which would be in a position to take over the business. If this was an option it would be possible to arrange for a buyback of shares from an exiting shareholder, if there would be other shareholders new or e isting left to carry on the business. It would also be possible to do a straight sale of the business from the company to the management which could then be carried on as a sole trader, or indeed to sell the business into a new company which management could set up. he a or benefit of an is that e iting shareholders would get payment for the value of the goodwill element of the company, as well as possibly accessing any cash held ta e ciently in a share buybac scenario. his gives so e of the benefits of a third-party sale in a ar et where a third-party sale ay be di cult to organise.

Sale to a Third Party An open market sale is an attractive option in that the shareholders receive the value of the goodwill built up in the business over the years. However, the purchaser could take the view that the goodwill is largely derived from the activities of the shareholders who are active in the company. In other words the goodwill may leave, once the shareholders retire. In general, a person who buys a company where a large proportion of the goodwill of the trade has attached to the exiting shareholder, will look for an earn-out ele ent to be included in the agree ent. This ensures that the existing personnel remain

Summer 2019 Sandra Meade is a chartered tax adviser at O’Hanlon Tax Limited. Robert Burns is a director of Erisbeg Holdings Limited

in place long enough for custo er loyalty i.e. the goodwill to transfer to the new purchaser. n open ar et sale is li ely to re uire so e for of an earnout contract. In general, a purchaser will not be willing to borrow money, or put money up to purchase the cash value in the company. In other words, if part of the value of the company comes from the trade it is carrying on, and the balance of the value of the company comes from the cash it holds on deposit, a person interested in acquiring the company is likely to look for the cash to be drawn out, so that he or she only pays for the asset that is really being ac uired i.e. the business. The extraction of cash from the company can be co plicated and in general as there is usually a concern for a purchaser about the tax history of an e isting trading co pany the sale can be structured by hiving the trade o into a new co pany leaving the cash behind in the old company, in the existing owners’ hands. owever in any cases it can be di cult to identify a purchaser and an open market sale may not be an option.

Liquidate to Terminate Business f a third-party purchaser cannot be identified and there is no management personnel working in the business interested in acquiring the business, then there is very little e ibility in ter s of disposing of the business, and the shareholders may simply have to close down the business. This would normally be done by liquidating the company and accessing the cash and other assets


held by the company. The big disadvantage with a liquidation is that the value of the goodwill is lost. Furthermore, the company will cease to trade and employees of the company will lose their jobs. In many cases, where a person has spent their working life building a successful company their preference is for the company to continue, leaving a legacy and hopefully providing some job security for colleagues who helped to build the business.

Practical Issues It is important that a client seeks tax planning advice in time so that they can ensure that they’re meeting the conditions of any tax relief which might be available on exit. A key problem for businesses that are looking to exit is that there is no clear succession plan in place. It may be that there is no family member who might succeed, no people on the management team who might be interested in a management buyout and it may not always be easy to identify a suitable purchaser on the open market. urther ore one of the significant issues can be that once the business founder moves away from the enterprise there ay not be a su ciently e perienced team left behind to run the business and drive expansion or progress. In some cases there may be a family member who is interested in succeeding to the business, but it may be that they do not have the required skill set in order to take over the business. These can be crucial issues which can hamper any potential succession planning for the business. P the Parchment 39

40 the Parchment

Summer 2019 Julie Doyle is head of legal services at Clúid Housing. She is a member of the Parchment committee

20 Minutes With...

Leading the Way isa roderic is the anaging partner of international law fir eachcroft which recently celebrated its tenth anniversary in ublin. n her role as head of the commercial litigation department Lisa has been involved in complex commercial disputes and has defended cross- urisdictional litigation in the product liability and financial services spheres. he is a co ittee e ber of the o ercial itigation ssociation of reland and has co-authored the ood Practice iscovery uide. ulie oyle et with isa to gain so e insight into her life in law

Can you tell me a little about your background and where you grew up? ou would thin this was a straightforward uestion owever y dad used to wor with the and therefore as a fa ily we oved around when he too up positions in various o ces. was born in ublin spent y preteens in hicago y actual teens in undal and went to college in alway. What drove you to choose a career in law? uc . hen went to as it then was enrolled to study arts. egal science was one of the four sub ects studied in 1st year. obtained y degree in legal science in sociology and politics and went on to do an . owever when started y arts degree was e ually open to pursuing a degree in nglish and history and following up with a ip and beco ing a secondary school teacher. lthough was always attracted to law it was only when began studying it in legal science that realised it was the career for e. have no regrets about the secondary school teaching save for the holidays… When did you qualify and where did you commence your career? was fortunate enough after co pleted y in alway to obtain an apprenticeship at oodbody. obtained a fantastic training with them and was glad to be “kept on post ualification where spent a brief period as a corporate lawyer. then applied

for a litigation position in atheson r sby Prentice as it then was and spent 1 years there a ing so e great friends and gaining great e perience on the way.

particularly recall the strong wo en that have wor ed for throughout y career. y approach ay be di erent to theirs were it not for them punching through the barriers which existed in law fir s at that ti e

Who has had the most influence on your career to date and why? t is very di cult for e to single out any particular individual. have been very fortunate in y career to wor for or with some excellent lawyers who were also brilliant people. particularly recall the strong wo en that have wor ed for throughout y career. lthough y approach ay be di erent to that ta en by the were it not for the punching through the barriers which e isted in law fir s at that ti e wo an reaching the top would not have been a path for e to follow. DAC Beachcroft opened its doors in Dublin in 2009 with just one Dublinbased lawyer and now boasts almost 50 fee earners. Can you tell us about the story of the firm and its growth over the past decade? eachcroft ublin as it then was opened its doors in arch 2009 under the stewardship of atie da a a. t was established to particularly service the client base which eachcroft in the was nown for insurance and healthcare. bout 1 onths later oined the fir to head the co ercial litigation group which was the Parchment 41

Photography: Bryan Meade

would li e to thin that a collaborative and e powering. ne of the ost liberating things that have learned is that a leader does not have to be good at all aspects of the role but rather they have to recognise where they have weaknesses and surround the selves with people who are better at the things that they are weak at the first non-insurance focused o ering in the ublin o ce. hortly thereafter was oined by arry eynolds to lead our e ploy ent tea and ary ice who leads our co ercial and regulatory tea . ith the imminent arrival of a corporate and a co petition tea ublin will have a full service o ering . e will continue to be ar et leaders in the insurance and healthcare space and are looking forward to e panding on our successes in the wider legal sphere. ur growth is so ething we are very proud of and it has been sustainable and profitable. e are pri arily focused on people our own and our clients and any decision which is taken to expand into an alternative practice area or to increase the size of a tea or o ering is ade in a ethodical and considered way. s you have said we now have an o ce of over 5 people with growth plans to e pand to 100 people within the ne t five years. longside our growth in ublin eachcroft P has also grown and e panded and is a truly international fir with strength and breadth across urope atin erica orth erica and ingapore. t is a really e citing ti e to be part of this fir . Congratulations on recently becoming a full member of the Paris Bar! How did this come about and what did you need to do to become a member? y partner a es olville and were delighted to be approached by our anaging partner in connection with the establishment of eachcroft in Paris. eachcroft France opened earlier this year and is led by two partners ladi ir ostan nce une and hristophe ucher- orth. ladi ir and hristophe have considerable e pertise in the do estic insurance and industrial ris s sector. s was the case when the ublin o ce was established it was i portant that they had other partners within the networ to support the in their establish ent and growth. n beco ing partners of rance it was appropriate for a es and to beco e e bers of the Paris ar. his involved us co pleting and sub itting the necessary 42 the Parchment

paper wor and then uni uely for e in any event attending at an interrogation in the o ce of a e ber of the Paris ar who was tasked to satisfy himself that it was appropriate to reco end us. han fully the member of the bar who interviewed me had better English than my French and the interrogation was more in the form of an in uisitive chat e were ad itted to the Paris ar over four onths ago and attended the cere ony in Paris. his was a really lovely occasion in the old Palais de ustice and the wearing of our robes was obligatory. here was considerable ba e ent e pressed by our colleagues as to how we did not have our own robes as they could not understand how you could operate as a lawyer without one. han fully robes were borrowed fro our new rench colleagues and we were suitably attired on the day. It is almost five years since the commencement of the Court of Appeal. What do think its impact has been on the management of litigation? believe the ourt of ppeal has been transfor ative since its co ence ent. a in genuine awe of the calibre of its bench and the rules introduced to co pel the parties to condense their sub issions and their argu ents are very welco e. owever the elephant in the roo is the unfortunate delays in getting atters on before the ourt of ppeal. s was the case with the upre e ourt historically tactically an appeal to the ourt of ppeal can be used by disappointed litigants in the igh ourt as a eans to delaying or postponing the i pact of a igh ourt decision. his delay also under ines the benefits of the speed associated with co ercial court. lthough a atter can be dealt with e peditiously before the co ercial court an appeal will li ely result in a delay of over a year in obtaining a hearing date before the ourt of ppeal. Can you tell us a little about the recent high profile Supreme Court case you were involved in based on a challenge to powers of search and seizure arising from a dawn raid?

his was a very interesting case where our client the P was engaged in proceedings in which the nature and e tent of its search and sei ure powers was challenged by . found this case of particular interest given the noc on conse uences this decision had not ust for our client but also for other bodies and authorities who have search and sei ure powers. he case was uni ue for e in that we had two senior counsel engaged ia h yland who dealt with atters fro a regulatory perspective and e y arrell who dealt with the potential i pact on cri inal prosecutions. t was very interesting to see the overlap between the civil and cri inal sphere in the argu ents ade. You have had a particular interest in discovery. The Discovery Review Group chaired by the President of the High Court is currently looking at how court rules on discovery and other procedural issues might be reformed to improve access to justice. What reforms would you like to see? t is very di cult to be a litigator and not be interested in discovery which as ost litigators will say can be the bane of a case. s part of y involve ent with the we ade a sub ission to President elly s eview of the d inistration of ivil ustice which specifically focused on discovery. n this sub ission we advocated for very widespread refor s. lthough the rules regarding discovery were first introduced in 1905 the procedures for discovery have only been substantially a ended twice since then in 1995 and 2009 and with respect these a end ents did not significantly alter the substantive rules governing the circu stances in which a docu ent or class of docu ents will be discoverable or the matter in which discovery is to be ade. his is all the ore surprising given the proliferation in recent years of lectronically tored nfor ation and the very significant i pact that this has on both costs and delay in litigation. he reco endations which we ade included 1. hanges re uiring parties to deliver narrative state ents with pleadings thereby narrowing the pleadings which in turn would narrow any discovery re uired. 2. eplacing the re uire ent to see and a e discovery of categories of docu ents with a general obligation to discover predeter ined classes of docu ents at fi ed points in the proceedings. . eplacing the obligation to a e discovery of Peruvian uano docu ents with an obligation to discover docu ents which are aterial to the issues in a case and its outco e. . Provision for additional discovery alternatives to discovery or no discovery

Summer 2019

20 Minutes With...

in appropriate cases and in circu stances which no discovery is sought a potential fast trac ing of these cases. 5. pdating of the rules to properly deal with . . ore rigorous i ple entation of e isting court rules which provide for a stri e out of proceedings or costs orders against parties who failed to comply with their discovery obligations. t would be great to see so e or all of the in the eview once published. You are also one of a small number of female managing partners in Dublin. Earlier this year the Law Society launched a new taskforce to promote gender equality, diversity and inclusion. What do you believe needs to be done within the profession to promote gender equality in leadership roles? his is a tric y one. f was to co e up with a one word response it would be e ibility. lthough a conscious that veering into over generalisation in y e perience wo en tend to struggle ore with the need to cover external commitments and interests and this need to get out the door or wor e ibly can so eti es wor against the in the conte t of pro otion. do believe than fully this is changing and it has to. n circu stances where the traditional model of promotion relies on your billable hours this presents a real di culty for wo en who need or ore properly want to achieve a better balance between their ho e and wor ing lives. ne of the reasons that a happy to be wor ing with eachcroft is that the fir genuinely gets this . n fairness it also is not ust so ething for our fe ale e ployees leaders but also for ale e ployees leaders. here are a nu ber of part-ti e e uity and salaried partners throughout the business and any of our e ployees wor three or four days a wee not necessarily for fa ily reasons but because they have another passion in their lives such as a dedication to a particular charity or group or an involve ent in a sport. uch e ibility does of course ta e anaging. lients will still re uire and be entitled to a full-ti e service and any of my friends who have worked three days a wee would often co ent that they are wor ing five days in three as there s no cover when they re not there and or they ta e calls routinely when they re supposed to be o . owever believe we will get there as a profession the fact that it s di cult doesn t ean that it shouldn t happen. here also needs to be a greater recognition that the highest biller is not always the best person to be a partner in a fir and a ore nuanced and holistic approach needs to be taken in assessing

who you wish to lead your organisations and whose behaviours you wish to reward and support. In your experience what do you believe is the reason for the gender pay gap within the profession? gain thin this is due to the traditional odel of progression in law fir s being connected to the hours wor ed and fees billed. thin if there is a change in approach and people s pay is a true re ection of their value to their clients and to their colleagues this pay gap should reduce. How would you categorise your leadership style? would li e to thin that a collaborative and e powering. ne of the ost liberating things that ve learned is that a leader does not have to be good at all aspects of the role but rather they have to recognise where they have wea nesses and surround the selves with people who are better at the things that they are wea at. ou can spend a lot of wasted energy trying to become mediocre at

so ething and there s bound to be so eone else in your organisation who will have this as a strength naturally. here is a great uote fro hristine aine which is to build a strong tea you ust see so eone else s strength as a co pli ent to your wea nesses not a threat to your position or authority . fir ly believe this and also believe that recognising the strengths in others gives them the ability and the confidence to progress which can only be to the benefit of all. Finally, what are your priorities for your firm during your term as managing partner? n o ce ove is planned to cater for our expansion to date and growth into the future which will inevitably ta e up a considerable a ount of y ti e. y pri ary ai however is to continue to a e this the type of fir in which people want to wor and fro our clients perspective a fir in which we continue to deliver bespo e solutions to each of our clients - one client at a ti e. P the Parchment 43

Keith Walsh is chair of the Law Society of Ireland’s Child and Family Law Committee and the author of Divorce and Judicial Separation Proceedings in the Circuit Court: A Guide to Order 59 published by Bloomsbury Professional, 2019

Circuit Family Court Dublin Circuit rder 59 of the ircuit ourt ules deals with fa ily law applications. recent change to rder 59 has ade it uch easier for practitioners to rule ter s of settle ent. n this article eith alsh sets out the basics and provides the precedents re uired

1. The Circuit Court Rule Order 59, r 35 was introduced by the Circuit Court ules a ily aw 20 201 which ca e into e ect on 1 une 201 . 20 201 substantially changed the previous Order 59 and one of the innovations was a otion in agreed ter s to rule ter s of settle ent. Order 59 Rule 35 states: 1 n any case in which the parties are agreed in respect of all of the reliefs being sought, the applicant or the respondent ay sub ect to the provisions of the following sub-rules of this rule by notice of otion to be served on the other party and where relief pursuant to section 12 and or 1 of the 1995 ct and section 1 of the 199 ct is sought on the trustees of the pension sche e concerned not less than 1 clear days before the hearing apply to the court for udg ent in agreed ter s. 2 n application entioned in sub-rule 1 shall unless the court otherwise directs, be grounded, inter a ia upon i an a davit e hibiting the agreed ter s and ii an a davit or updated a davit of eans of each party sworn in each case not earlier than si onths before the date on which the otion is issued. n the hearing of the application the court ay upon hearing such evidence, oral or otherwise, as ay be adduced i give udg ent in the ter s agreed between the parties or ii ad ourn the application and direct the attendance of a party or 44 the Parchment

other person, or the giving of further evidence on the application as the court ay re uire or iii give directions in relation to the service of a notice of trial or notice to fi a date for trial. here an agree ent or consent to the a ing of an order under this rule is given in writing by a party who does not intend to appear on the hearing of the otion such agree ent or consent shall be verified on a davit or otherwise verified or authenticated in such anner as the court considers su cient. 5 here an order to be sought under this rule includes an order for pension relief, a draft of such order which has, so far as the pension relief sought is concerned, been served on the trustees of the pension sche e in uestion shall be handed into court on the hearing of the application.

2. The Documents and Proofs Required: a a notice of otion b where pension orders are sought a notice to trustees ust be served not less than 1 clear days before the hearing date and the trustees should be put on notice of the hearing date c an a davit e hibiting the agreed ter s d an a davit or updated a davit of eans of both parties sworn within si onths of the date the otion was issued e where a party does not intend to appear at the hearing of the otion the agree ent or consent ust be verified on a davit or otherwise verified or authenticated in such anner as the court

Summer 2019

Family Law

considers su cient f a draft order for pension relief which has been served on the pension trustees should be handed into court on the hearing of the application. n addition although not entioned specifically in rd 59 r 5 other essential proofs to have at before the hearing if possible are: g an a davit of service of the notice to trustees should be filed on or before the return date on the otion h in addition to serving the draft order for pension relief on the pension trustees, it should also be served on the other solicitor party if unrepresented and a letter sought fro the trustees confir ing that the orders sought in the draft pension ad ust ent order are capable of i ple entation by the . f such a letter is forthco ing then the court should be in a position to rule the pension ad ust ent orders on the return date. he original letter fro the pension trustees should be handed into the court. t is also i portant to have a state ent of benefits for all pensions as this is currently re uired by so e ircuit ourt udges. n alternative way of proceeding is to have ter s of consent ruled by way of udg ent in default of appearance or defence as set out in rder 59 r 2 b owever this udg ent in default urisdiction is not available after the filing of a defence.

3. Frequently asked Questions and Answers When is a notice of motion to rule terms of consent not required ?

AN CHÚIRT TEAGHLAIGH CHUARDA THE CIRCUIT FAMILY COURT RECORD NO <<Record_Number>> DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989 AND IN THE MATTER OF THE FAMILY LAW ACT, 1995 [USE FOR J.S.] OR IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996 [USE FOR DIVORCE] BETWEEN <<Applicant>> APPLICANT AND <<Respondent>> RESPONDENT NOTICE OF MOTION TAKE NOTICE that on the day of 201 at Circuit Family Court No: , Phoenix House, Phoenix Street North, Dublin 7 at 10.00 am or at the earliest opportunity thereafter counsel/the solicitor appearing on behalf of the Applicant herein will apply to this Honourable Court for the following Orders: 1. An Order for Judgment in the Terms of the Consent Terms herein. 2. Such further or other Orders as this Honourable Court deems meet and just. 3. Costs. Which said Application to be grounded upon the pleadings and proceedings already had herein, this Notice of Motion and Grounding Affidavit, the Affidavit of Service thereof, such further and other evidence as might be adduced by or on behalf of the Applicant, the nature of the case and the reasons to be offered. Dated this day of 20 Solicitors for the Applicant Address To:

The County Registrar, The Circuit Family Court Office, Phoenix House, Phoenix St. North. Smithfield, Dublin 7.

To: <<Other_Party_Solicitor_Name>> <<Other_Party_Solicitor_Address>> BACKPAGE

the Parchment 45

HEADING AS NOTICE OF MOTION [USE TITLE APPROPRIATE TO EITHER JUDICIAL SEPARATION/DIVORCE] AFFIDAVIT OF <<FE_NAME>> I <<FE_NAME>> Solicitor of Solicitors, ADDRESS aged 18 years and upwards MAKE OATH and say as follows: 1. I am the solicitor acting on behalf of the above named applicant and I make this affidavit from facts within my own knowledge, save where otherwise appears and where so appearing I believe the same to be true. 2. I beg to refer to the pleadings and proceedings herein when produced. I say that the Civil Bill herein was issued on X day XX 201X wherein the applicant seeks a Decree of Judicial Separation/Divorce and ancillary relief. 3. I say that I have filed a certificate pursuant to Section 5 of the Judicial Separation and Family Law Reform Act, 1989 [for J.S.] or Section 6 of the Family Law Divorce Act, 1996 [DIVORCE]. 4. I say that the parties have agreed to compromise all matters at issue between them on the basis written in the consent terms annexed hereto. I beg to refer to the original agreed terms of consent upon which marked with the letter “A� I have signed my name prior to the swearing hereof. 5. I say that both parties have had the benefit of legal advice and both parties have sworn affidavit of means not earlier than 6 months of the date of the swearing hereof and I beg to refer to same when produced. [Alternatively you may wish to exhibit the sworn affidavit of means]. 6. Accordingly I pray this Honourable Court for Orders for the reliefs sought on the Notice of Motion herein. JURAT This Affidavit is filed on behalf of the Applicant by XY Solicitors of ADDRESS on the day of 20 BACK PAGE EXHIBIT PAGE

Prior to the introduction of r 35 it was the practice to rule consent ter s using default of defence otions where possible

46 the Parchment

here there is already a hearing date allocated, however it is good practice to let the court or ircuit a ily ourt o ce now in advance that the atter has settled and will not be contested on the date in uestion and will si ply be a ruling. Who drafts the notice of motion and grounding affida it to r e ter s of consent he usual practice where fa ily law atters are co pro ised is for the solicitor counsel for the applicant to initiate the application to rule the ter s of consent and draft the notice of otion and grounding a davit. ho d the ter s of consent e t ed and if so whom ? es the ter s of consent should be typed by the solicitors for the applicant and it is good practice to send the typed copy to the other solicitor in advance of sub itting it to the ircuit ourt o ce. P


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DSBA Younger Member’s seminar at Arthur Cox

The DSBA Younger Member’s Committee held a litigation seminar on 11th April 2019 in the offices of Arthur Cox. Speakers on the night were Hugh McDowell, BL and Anthony Thuillier, BL. Hugh discussed recent updates in the law of contract with a particular focus on the enforceability of penalty clauses in commercial contracts. Anthony focused on Brexit and the service of documents in the UK. The event was well attended and there was a high level of interest in the topics discussed.

Photography: Michael Finn

Left to right: Gregory Benson, McCann Fitzgerald; Mairead McShea, McCann Fitzgerald; Georgina Lanigan, Baily Homan Smyth McVeigh and Deirdre Farrell, Amorys

Left: Maeve Delargy, Arthur Cox; Jean Lennon, McDowell Purcell; Emma, McDowell Purcell and Vitalia Sava, Arthur Cox Far left: Aine Hogan, Mason Hayes Curran and Naomi Pollack, Mason Hayes Curran

Right: Aideen Shanley, BHSM; Laura Horan, Darcy Horan and Deirdre Nally, Mason Hayes Far right: Hugh McDowell, BL, speaker and Jean Lennon, McDowell Purcell

Left: Ruth Meenan, Mason Hayes; Claire Long, Mason Hayes Far left: Treasa Walsh, Maria Curran and Noreen McGovern, all McDowell Purcell

48 the Parchment

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Lawyers For Yes Divorce Referendum A coalition of lawyers came together in early May 2019 to call on voters in Ireland to support a #yes vote in the Referendum. The campaign was formally launched by Catherine Forde BL, FLAC Chairperson Peter Ward SC, FLAC Chief Executive, Eilis Barry, Family Law Practitioner Keith Walsh and Muriel Walls, Solicitor. n overwhel ing 2 of the electorate voted in favour of changing the law to reduce the waiting time for a divorce. Family Law Practitioner Keith Walsh said; “The referendum result will reduce the toll of a long divorce waiting period on the children of the marriage as well as the spouses. The change will also reduce the financial distress su ered by separating couples by removing the some of the duplication in the current system by making divorce within a reasonable period of time a reality and so getting around the need for a legal separation.”

Some of the Lawyers who put their weight behind the “Lawyers for Yes”campaign in the recent Divorce Referendum were left to right: Catherine Forde, BL; Ellis Barry; Keith Walsh; Muriel Walls and Peter Ward, SC. Pic: Paul Sherwood

New Probate Firm to Tackle Missing Next-of-kin Historical, complex intestate and missing heirs cases are the focus of a new fir recently launched in Ireland. Erin esearch with o ces in rogheda are calling on solicitors nationwide to look through their files and forward unresolved and historical cases for uery. he fir does not charge a fee for cases with only minor funds on account. Managing director Padraic Grennan who has extensive experience in solving co ple probate cases set up the fir when he recognised a gap in the Irish market. “I believe there are hundreds of case files sitting unresolved in solicitors o ces up and down the country. It may be that the trail has run cold that ne t-of- in 50 the Parchment

aren t nown or all atte pts to find the have come to nothing. ecause of reland s historical e igration patterns any beneficiaries and their relatives may be living abroad in places like Australia and the United States. Through our previous work on probate cases, we could see that a service was needed to help resolve these cases so that solicitors can close them out and remove them from their books. hat s why we founded rin esearch. Grennnan says in some instances solicitors are forced to forward cases to the Chief State Solicitor. e would say don t do that. all us first as in many in cases we will most likely track down entitled kin and have them appointed as administrator.”

Summer 2019


New Partners at Hayes Hayes Solicitors has announced the appoint ent of two partners to their fir . Áine Coghill has been promoted to partner

in the property department and Katy Meade has been promoted to partner in the healthcare department.

New Managing Partner at Arthur Cox

Pictured from left: Áine Coghill; David Phelan (managing partner) and Katy Meade

rthur o has chosen eo oore a senior partner in the fir s corporate department, as its next managing partner. eo will lead the fir for the ne t four years. He will take up his role on 1st November 2019, succeeding Brian or an who will return to full-ti e practice as a corporate partner having served two terms as managing partner. eo fro or graduated fro UCC in 1996 and holds an MLit from . e oined rthur o as a trainee in 1998, left for two years to work in the corporate finance group of a leading ew or fir and returned to the fir being made a partner in 2007.

Homeless Charity Boosted by June CPD Lawyers Against Homelessness held a P se inar on 2 th une 2019. he guest of honour was the hief ustice r ustice ran lar e. e spo e about various matters including keeping up with changes in the law the nu ber of udges and udicial appoint ents court resources and and access to ustice. ther speakers included Brenda Power, BL; Peter

Bland, SC and Richard Kean, SC. Constance Cassidy, SC presented a cheque to Brother Kevin Crowley for €23,575 which was raised at the previous P held in March. Brother Kevin thanked the lawyers who have raised in excess of €110,000 to date fro this initiative of P s. rother evin said that the apuchin ay entre for Homeless People currently provides

free of charge, over 300 breakfasts and 550 lunches on a daily basis to the homeless and marginalised, six days a week. “Without the kindness and support of people like your good selves it would not be possible for us to continue to provide the same high standard of help and assistance to the most needy and vulnerable in Irish Society,” said Brother Kevin. the Parchment 51


Matheson’s London Appointment Matheson has announced the appoint ent of haron aly as head of its ondon o ce. haron has relocated fro ublin to ondon to assist the fir in e panding and further strengthening atheson s presence in one of its strategically important and growing markets. Sharon will continue her practice as a commercial litigation partner and will also assume the role of head of atheson s re it dvisory roup.

DSBA Golf Outing he olf ociety will hold its aptain s Pri e on hursday 12th epte ber 2019 at Milltown Golf Club. For further information, contact Maura Smith at the ce on 01 0 0 9.

Lady Solicitors’ Lunch Friday 4th October 2019 for Lady Solicitors in the Kildare & University Club at 1pm. Drinks Reception at 12.30pm. Tickets: €70 per person For bookings and more information please contact or Tel: 01 670 6089.

Michael Mulcahy Honoured rinity ollege ublin has awarded its prestigious ael Bunni Medal to Michael Mulcahy, SC at a recent ceremony in the college. The medal is awarded for outstanding course work in the renowned construction law and contract administration postgraduate diploma course. The medal is named after, and sponsored by Professor Nael G Bunni, the eminent engineer, arbitrator, conciliator and author.

Photo: Professor Nael Bunni presenting the Bunni Medal to Michael Mulcahy SC 52 the Parchment


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In Practice

SOLICITORS ADVERTISING REGULATIONS 2019 e would li e to draw the attention of e bers to the passing of the new olicitors dvertising egulations of 2019 which are contained in tatutory nstru ent 229 of 2019 and ca e into force on 1st une 2019. hese new regulations constitute an a end ent to the 2002 regulations that have governed the conduct of solicitors in the anner in which they advertise their services. he new regulations constitute a rela ation of the so e of the ore stringent provisions in the 2002 regulations. e bers should be conscious of the fact that advertising is regarded as e tending to the aintenance and operation of a website and the use of oogle and other si ilar search engines to pro ote your practice. hile the provisions have certainly been rela ed you should at all ti es be aware of the

catch-all prohibitions that have been retained. or e a ple adverts in bad taste or that bring the profession into disrepute. he change in the regulations was caused by the uropean o ission putting pressure on the overn ent to rela the regulations arising out of the provisions of rticle 2 of the uropean nion ervices directive passed in 200 which obliges e ber states to re ove all total prohibitions on co ercial co unications by the regulated professions. he new regulations should be carefully considered to see whether any of the changes that have been introduced are of benefit to you in the anner in which you advertise your practice. t should be noted that if you are already in co pliance with the 2002 regulations then there need be no change arising out of the 2019 regulations.

t should also be noted that the aw ociety as the current regulator provides a vetting service for practitioners who wish to avail of it. nd it is specifically provided in the regulations that it is a defence to any co plaint against a solicitor alleging a breach of the regulations that the solicitor sought and obtained the ociety s prior approval in writing of the for anner and conte t in which the advertise ent was published. inally please note that the responsibility for the regulation of advertising in the solicitors profession is intended to be transferred to the who will be conducting a consultation process with interested parties in relation to the advertising regulation that it will publish. ia aw e o ittee




ana e ent

DSBA SPECIMEN PARTNERSHIP AGREEMENT he peci en Partnership gree ent was launched in pril 2019 and is now available fro the . he new update is a substantial update on the 2001 edition and incorporates changes in the following areas 1. Provision is now ade to enable a partnership to obtain and aintain when it is available fro the authorisation to practise with li ited liability. 2. he docu ent which was last updated in 2001 incorporates changes arising as a result of the evolution of the solicitors

practice over the last two decades including provisions in relation to co pliance partners data protection o cers the as entioned above anaging partners sin ing funds etc. he speci en deed also recognises that practices are not si ply o ce based any ore and see s to recognise the reality of financial transactions for practices. t is intended that the deed would be used to identify provisions that ight be incorporated in your current deed. s always with atters such as this the speci en is not a precedent

to be adopted wholesale but rather is intended to assist you in settling your own deed which of necessity will be uni ue to the special circu stances in your own practice. e hope that those who avail of the speci en will find it of value to you and as always we welco e any feedbac fro any parties in relation to the peci en Partnership eed for the purposes of future update and a end ent as appropriate. ia aw e o ittee




ana e ent

HIGH COURT PERSONAL INJURY UPDATE ery few docu ents are now filed in personal in ury cases. hen atte pting to set down a case practitioners are advised that if nothing has been filed for over a year a notice of intention to proceed has to be filed. his attracts sta p duty and causes delays. he central o ce sta have confir ed that practitioners have only to advise des sta that pleadings have been e changed in the interi . heir word will be accepted. hey do not re uire proof that particulars have been e changed or a defence filed. y understanding is that an a davit of verification does not count as pleadings filed. Barra O och ain 54 the Parchment

B Liti ation o


Summer 2019

In Practice

IMPORTANT NOTICE – CIRCUIT COURT Practitioners should be aware of a new practice direction for obtaining a hearing date in the ublin ircuit ourt. o for al a end ent is going to be ade to the current practice direction but the ircuit ourt o ce will for the purposes of assigning a hearing date accept the following a. certificate of readiness fro unior counsel as agreed by the other side solicitors . he counsel spo e to said that the plainti solicitor sent the certificate of readiness to the defendant solicitor. he defendant

solicitor confir ed they were happy with sa e. his was then sent down to the o ce with the usual notice of trial docu ents. b. he chec list with the duration of the case nu ber of witnesses etc. or the purposes of personal in ury actions it is not necessary to e change e perts reports edical reports and ensure the e perts have et with each other. Barra O och ain

B Liti ation o


NOTICE RE: DSBA PRECEDENTS ollowing a recent udicial co ent it is felt appropriate to ention that any precedents that are licensed by the are only and e clusively licensed to solicitors. he does not and will not be licensing third parties to use the precedents that they currently issue. Presently the has three precedents which they are presently licensing and these are 1. he hort er s usiness etting gree ent.

2. .

he esidential enancy gree ent. he peci en Partnership gree ent. urther precedents are presently being finalised and will issue during the course of the re ainder of 2019 and beyond. hould any of our e bers beco e aware of any parties other than solicitors using the precedents we would be grateful if you could bring that to the attention of our o ce. ia aw e o ittee




ana e ent

PAPERLESS COURTS ecently a very high profile case was heard in ourt 2 at the our ourts which was co pletely paperless. his case was able to avail of the courts service wifi now installed in ourt 2. ll parties accessed all docu ents using laptops and or iPads. t is necessary in such cases to have a technically gifted individual to operate the syste . here is a e ber of the unior bar who perfor ed the tas and the ourts ervice will be able to reco end that person. nyone who wants to run a case in a li e anner need only contact evin eill of the ourts ervice. Barra O och ain

B Liti ation o


NEW DSBA SPECIMEN SHARE PURCHASE AGREEMENT TO BE UNVEILED he o ercial aw o ittee of the ublin olicitors ar ssociation is pleased to announce that the new speci en hare Purchase gree ent disclosure letter and deed of ta covenant 2019 edition is al ost ready for publication and will be launched at a se inar in epte ber. n the ten years since the last edition of the hare Purchase gree ent the legal and regulatory landscape has changed significantly. he ost notable changes are listed below he o panies ct 201 represents the ost significant overhaul of co pany law in reland in the last 50 years. he fourth and fifth nti- oney aundering irectives and 5 introduced the re uire ent for all co panies to hold and register infor ation on their beneficial owner s . Privacy law was radically refor ed in 201 by the eneral ata Protection egulation P along with other changes in this area including the e-Privacy irective in 2011 the oo ies otice directive . he and and onveyancing aw efor ct 2009 updated rish property law and

the aw ociety released a new edition of b ections and e uisitions on itle 2019 edition . he inancial eporting ouncil published 102 replacing e isting rish and P and introducing new accounting ter inology. he rbitration ct 2010 adopted the odel aw on nternational o ercial rbitration and the default rules for arbitration in reland were brought into line with international best practice. legislation was consolidated in the alue- dded a onsolidation ct 2010 while the niversal ocial harge was introduced in 2011 replacing the inco e and health levies. he Personal nsolvency ct 2012 introduced a new personal insolvency regi e and a new register. Public bodies have co e and gone he ational sset anage ent gency was established in 2009. he rish inancial ervices egulatory uthority was dissolved and absorbed into the entral an of reland in 2010.

he rish an esolution orporation was established and li uidated. he Pensions oard was rena ed the Pensions uthority in 201 . he o petition uthority and the ational onsu er gency erged in 201 to for the o petition and onsu er Protection o ission bringing stricter national erger control re uire ents. he o ce of the ata Protection o issioner was replaced by the ata Protection o ission in 201 . he business transaction landscape has also changed dra atically as the physical gives way to the digital and virtual docu ent e ecution beco es increasingly co on. he o ercial aw o ittee is ost e cited to produce this new te plate that will be of benefit to practitioners. atch out for details of the launch se inar on the website and notices in advance of epte ber or to e press your interest please contact the o ces at 01 0 0 9 aura . a R an is the chair erson of the B o ercia Law o ittee the Parchment 55

DSBA Litigation Seminar

The DSBA Litigation Committee hosted a CPD seminar on 3rd April 2019 entitled Litigation and Commercial Leases. The speakers were Susan Martin, solicitor/DSBA; Fionnula Ní Dhúgáin, BL; Angela McCann, A McCann & Co. and Michelle Linnane, consultant. The seminar was chaired by retired Judge John O’Hagan.

Photography: Michael Finn

Left: Speakers L-R Fionnuala Ní Dhúgáin; Michelle Linnane; retired Judge John O’Hagan; Greg Ryan, President DSBA; Susan Martin; Angela McCann

Left: Dr Gabriel Brennan, Law Society; Eamonn Keenan, Sexton Keenan & Co. Far left to right: Greg Ryan, Ryan & Ryan Solicitors; Darach Connolly, Darach Connolly Solicitors; Donal O’Kelly, Donal O’Kelly & Co; Judge John O’Hagan, retired

Right: Jacqueline Mulroe, Cavendish Lane Properties; Gerard James, William Fry. Far right: Julian Cunningham, Flynn O’Driscoll; Aoife Waters, Flynn O’Driscoll; John Kelly, Flynn O’Driscoll

Left: Conor Cleary, Martin Solicitors; Laura Horan, DSBA. Far left: Sharon McElligott, Murphy McElligott; Elaine Given, Shannon & O’Connor

56 the Parchment

Summer 2019 Photography: Michael Finn

Left to right: Anthony Thuillier, BL; Judge Robert Haughton; James Meighan; William Abrahamson, BL; Brendan Savage, BL; Killian Reilly

DSBA Litigation Seminar

The DSBA Litigation Committee hosted a litigation CPD seminar on 21st March 2019 entitled Update on Commercial Litigation. The speakers were William Abrahamson, BL; Nathan Reilly, BL; and Anthony Thuiller, BL.

DSBA Practice Management Seminar The DSBA hosted a CPD seminar on 11th April 2019 which addressed the DSBA’s Specimen Partnership Deed; recent developments in partnership law and limited liability for partnerships. The speakers were Brian J. Doherty, Chief Executive, LRSA; Robert Ryan, Doherty Ryan Solicitors; Maedhbh Clancy, Arthur Cox and Niall Cawley DSBA Practice Management Committee Chair. The seminar was chaired by Mr Justice Michael Twomey.

Left: Speakers Brian Doherty; Maedhbh Clancy; Robert Ryan; Mr Justice Michael Twomey; Greg Ryan, DSBA President; Niall Cawley

Right: Greg Ryan, DSBA President; Eamonn Carney, Carney McCarthy; Maedhbh Clancy, Arthur Cox; Angela McCann, A McCann & Co. Far Right: Finnian Doyle, Doyle & Co Solicitors; Tom Halligan, Gaffney Halligan

Left: David Ballagh, Ballagh Solicitors; Barry McCormack, McCormack Solicitors Far left: Anne Neary, Anne Neary Consultants; Donagh McGowan, Gerrard L McGowan Solicitors

the Parchment 57

DSBA Practice Managment Seminar

The DSBA Practice Management Committee hosted a CPD seminar on 14th May 2019. The speakers were Brian J Doherty, LSRA; Cathal McArdle, Central Bank and Jim Ryan, Law Society. The seminar was chaired by Niall Cawley, chairperson of the DSBA Practice Management Committee.

Left to right: Beverly Turner, Taylor & Buchalter; Kay Cogan, Cogan Daly & Co; Mary Cowhey, Mary Cowhey & Co Solicitors; Patricia O’Brien, Patricia O’Brien & Co and Helene Coffey, Crowley Millar

Left: Joseph Durkan, Keith Walsh Solicitors; Gillian O’Connor, Michael Boylan; Finnian Doyle, Doyle & Co. Far left: Anne Marie James, Kirwan, McKeown & James; Colleen Cleary, CC Solicitors

Right: Gareth Lally and Rachel Butler, O’Hanrahan, Lally & Dalton Solicitors. Far right: Jerry McCarthy, Carney McCarthy; Rosalyn Connelly, Carney McCarthy; Michael O’Shea, Michael O’Shea & Co

Left: Niall Cawley, speaker; Cathal McArdle and Jim Ryan, Law Society. Far left: Manus Sweeney, Manus Sweeney & Co; Brendan Byrne, Byrne Solicitors

58 the Parchment

Summer 2019 Photography: Michael Finn

Left to right: Speakers Brendan Harkin; Jeananne McGovern; Ellen Gleeson; Gearóid Carey, DSBA and Paul Ryan, DSBA

DSBA Commercial Litigation Seminar

The DSBA Litigation Committee hosted a Commercial Litigation CPD seminar on 21st May 2019. The speakers were Ellen Gleeson, BL; Jeananne McGovern, BL; Kyle Gribben, Matheson and Andrew Fitzpatrick SC.

Left: Helen O’Connor, A&L Goodbody; Claire O’Sullivan Far left: David Fenton, Hayes McGrath; Donal O’Kelly, Donal O’Kelly

Right: Julie McEvoy, LK Shields; Ciara Smyth, LK Shields. Far right: Karen Pearson, ACC Investments Ltd; Peter McKenna, McKenna Durcan

Left: Sharon Scally, Amorys; Michelle Kilroy, Beale & Co. Far left: Maura Kiely, Office of the Revenue Commissioners; MarieClaire Maney, Office of the Revenue Commissioners

the Parchment 59

DSBA Litigation Seminar

The DSBA Litigation Committee hosted a CPD seminar entitled GDPR: Developments in Litigation One Year On on 30th May 2019. The speakers were Simon McGarr, solicitor; Michael Murphy, Holmes O’Malley Sexton; Graham Doyle, Deputy Commissioner and Head of Communications at the Irish Data Protection Commission and Dr TJ McIntyre (UCD).

Photography: Michael Finn

Left to right: Speakers Simon McGarr; Michael Murphy; Dr TJ McIntyre; Marcus Hanahoe; Fleur O’Shea; Killian O’Reilly

Left: Martin Gallagher, CSSO; Nicky Tyson, CSSO Far left: Julie Austin, Fieldfisher; Pamela Potterton, State Claims Agency

Right: Martin Moloney, MP Moloney; Feena Robinson, Beale & Co. Far right: Piarais Neary, Holmes O’Malley Sexton; Sarah Walsh, Carlisle Solicitors; Michael Murphy, Holmes O’Malley Sexton

Left: Ronan O’Brien, Gleeson McGrath Baldwin; Danielle Fleming, A & L Goodbody Far left: Robert Haniver, LK Shields; Darragh Killeen, LK Shields; Ruth Prendeville, Hayes Solicitors

60 the Parchment

Summer 2019 Photography: Michael Finn

Left to right: Rory O’Neill; Niall Cawley and Barry O’Neill

DSBA Practice Management Seminar

The DSBA Practice Management Committee hosted a CPD seminar on 18th June 2019 on various topics including property fraud, cyber security, solicitor advertising regulations update and advices on client and practice management. The speakers were Rory O’Neill, Law Society; Barry O’Neill, consultant and Niall Cawley, chair of the DSBA Practice Management Committee.

Left: Caroline Keane, Veale & Co; Brian McGrane, McGrath McGrane Far left: Aoife Corridan, Michael J Staines & Co; Gavin Simons, AMOSS

Right: Edward Geoghegan, Brian Grogan & Co; Vivienne Filgate, O’Connor Bergin Far right: Jennifer O’Callaghan, Revenue Solicitors; Mairead Duffy, Revenue Solicitors

Left: Philip O’Riada, O’Riada Solicitors; Vincent Shannon, Shannons Far left: Niall Cawley, Chair; David Colbert, Sheehan & Co

the Parchment 61

DSBA Mid-Summer’s Party and Law Book Awards

The DSBA midsummer party and 6th annual DSBA Law Book Awards took place at the Conrad Hotel, Earlsfort Terrace on 21st June 2019. For a full report on the Law Book Award winners, go to pages 12-15.

Photography: Michael Finn

Left: April Byrne; Elaine Given; David Stafford

Left: Colin Muldoon; Noreen Maguire Far left: Carol McGuinness; Rachel Baldwin, BL

Right: Diego Gallagher; Geraldine Kelly; Stephen Hanahy, BL. Far right: Eoin Molloy; Amy Hayes

Left: Greg Ryan, DSBA President; Ken Murphy; Yvonne Chapman Far left: Greg Ryan, DSBA President; Josepha Madigan, Minister for Culture, Heritage and the Gaeltacht

62 the Parchment

Summer 2019

Left: Paul Ryan; Chan Shi; Philip Lea; Paul Martin Far left: Sinead Noonan; Conall Geraghty

Right: Matthew Kenny; Owen Burke; Tony O’Sullivan Far right: Siobhan Lafferty; Tiernan Reilly; Joanne Cooney

Left: Ultan Bannon; Attracta O’Regan; Greg Ryan; Mairead Cashman Far left: Stuart Stein; Kerry Graham

Right: Joe O’Malley; Stephen Fitzpatrick; Kevin O’Higgins Far right: Vera Wegner; Dr Albert Keating, BL

the Parchment 63

Closing Argument Stuart Gilhooly

Stuart Gilhooly is a former President of the Law Society and DSBA. He is a partner at HJ Ward Solicitors, Harold’s Cross and former editor of the Parchment. He writes this column in a personal capacity

Mobs have always existed but finding a place to congregate and agree with one other has never been easier

The Court of Public Opinion Delivers its Verdict


he rule of law is one of these esoteric concepts which people with larger brains than this column concern themselves with when deriding countries where dictators or despots reside and have ridden roughshod over human rights. It is rare that genuine disquiet arises in common law regimes and certainly not where democracy is in an apparently healthy condition. There are, of course, degrees to which the rule of law can be undermined and in many jurisdictions worldwide, basic rights and access to justice are denied to the citizens. For this reason, it’s easy to believe that in this country, as with our neighbours either side of us our well-functioning de ocracy protects us from the sorts of regimes where the rule of law has been completely or partially eroded such as Turkey, Russia or China. Comparisons with such countries certainly re ect well on us and any issues we may be experiencing are miniscule when contrasted with systems where human rights are optional, not a given. That said, the erosion of the rule of law can be insidious and not always visible to the naked eye. The process has commenced in the US and the UK, not in a basic or fundamental way, but by gradual disregard by some members of government and the press of judicial decisions. We’ve seen President Trump and his supporters in the US right wing media deride the decisions of judges throughout his tenure. If court decisions don’t coincide with the policy of government, then by definition they are wrong. Of itself, this may be seen as a temporary aberration which will be corrected by the next incumbent. Perhaps, but the US system as we know, allows for the judges of a certain leaning to be appointed by 64 the Parchment

presidents of a similar bent to the Supreme Court. While of course, they are all deemed to be cognisant of the separation of powers, we all know the reality. In the UK, the problem is less acute and the judiciary has stood up well to any political bullying. However, parts of the UK media have been quick to undermine decisions of its own judiciary in relation to Brexit. The extraordinary headline titled ne ies of the People by the pro- re it Daily Mail in November 2016 after three judges ruled Brexit required the consent of parliament seemed to dovetail nicely with similar sentiments expressed in the US at the time. Which takes us closer to home. It’s important to be clear that our judiciary continues to behave with impeccable ethics and there’s no example of political bias in any decisions. In addition, our edia in general self-police the selves and would not tolerate overt ignorance of the rule of law such as seen in the US and UK to date. However, there are small signs that judicial independence is being questioned by certain sectors of society with the assistance of media, mainstream and social. It is most obvious and egregious when seen in reaction to decisions in the criminal courts. The visceral condemnation from a seething public tends to come when decisions arise in se o ence trials with respect to which the some of the public have made up their minds. While we’re entitled to have a view and indeed to express it, when a point is reached where we’re openly challenging the decisions of a judge as fundamentally wrong, it causes a gradual loss of confidence in the syste . While of course judges do occasionally make mistakes, that is what the appeal process is there for.

n a slightly di erent but related conte t the recent horrific urder trial of Ana Kriegel stirred the most primitive of emotions and was traumatic to all who followed the case and verdict. However, despite responsible reporting by the mainstream media, some Neanderthals felt the need to name and shame the two boys convicted despite the clearest instructions not to. his re ected si ilar unrepentant identifying of the boys now en who murdered Jamie Bolger in the UK. The most obvious example on these shores of the disregard for our own rule of law, as set down clearly in the Constitution, is the continuing campaign waged extensively across parts of middle class Irish society to decrease damages for personal injuries. Thankfully, our Government and judiciary have not bowed to the unrelenting pressure from all forms of media and certain classes of society to bow to what they consider to be reasonable compensation. Like many of the campaigns against the judicial decisions, it has its origins in the mob mentality encouraged by social media. Mobs have always e isted but finding a place to congregate and agree with one other, has never been easier. The Government continues to follow the sage advice of the Personal Injuries Commission and will task this job to the Judicial Council who will, no doubt, set appropriate guidelines without reference to interference from any outside interests be they legal, insurance or business. It is an ongoing battle to protect our rule of law and the independence of our judiciary to make decisions free from political or societal intercession. We need to be ever vigilant and we should trust our judiciary but we have a duty of care as well. We need to speak out when freedom of speech is being used to restrict constitutional rights. P



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