In Practice

DUBLIN CIRCUIT COURT

As per the Order of the President of the Circuit Court dated 6th of April 2020, where cases are settled and require to be struck out or other consent orders need to be ruled, during the current restrictions, these will continue to be dealt with by email requests from both parties and will be ruled by the County Registrar without the necessity of parties being present in court.

The following dedicated mailbox has been set up to deal with such consent applications only by the County Registrar for Dublin.

Dublin Circuit Family Law: email: dublincircuitfamilyconsents@courts.ie

Dublin Circuit Court Civil: email: dublincircuitcivilconsents@courts.ie

To apply for a ruling/order on consent, one single email ONLY from the moving party must contain all of the following: (a) the correct details of the case and correct record number; (b) the exact terms of the order sought to be made/ruled on consent; (c) the written consent of the solicitor for the other party to the making of the consent order; (d) a copy of the relevant Notice of Motion/

Notice of Trial; (e) where necessary the relevant exhibits

ONLY; (f) the date the matter is listed before the

Court or confirmation nothing is listed for hearing. (g) if a matter is urgent this must be highlighted by the Applicant in the subject line of the email. All such applications should be accompanied by a sworn affidavit.

If this is not followed the email will not be acted upon and will not be replied to. Other emails sent incorrectly to the consent email address will not be replied to.

NEGATIVE INTEREST RATES AIB MESSAGE FROM THE DSBA PRACTICE MANAGEMENT COMMITTEE

Attention is drawn to introduction by banks and in particular AIB’s imposition of negative interest. AIB have indicated by way of a 65-day notice that negative interest will be imposed on solicitors’ accounts on the expiry of 65 days from the date of notice. On the expiry date known as the “application date” if the Solicitors’ accounts are cumulatively in excess of €1 million, interest will be applied at a rate of .5% (one half of one percent) per annum on the balance on that date and each daily closing balance on the solicitor’s accounts for a period of months from the application date.

Practitioners should check with their bank, to make sure that any set off arrangements between overdraft on office accounts are not affected by any charge of negative interest.

If the practice balance is in excess of €1 million on the application date all balances

and not balances in excess of €1 million

will be charged negative interest.

Negative interest rates on or after the application date will subsist for two months and will be reviewed by AIB. There is no guarantee at this stage that: a. After the two month period negative interest rates will be discontinued; b. That the €1 million may be reduced to another figure say €500,000 and the regime continues as above.

Practitioners are advised to contact their own bank for clarification of the effect of the negative interest rates on their practice.

Clearly, solicitors will have to pass on the negative interest rate charged by AIB. Further, there will be an extra burden on solicitors’ practices to compute: 1. How much negative interest has to be deducted from each client; 2. A fee structure together with VAT in computing such negative interest; 3. Communication of these charges i.e. interest, professional fee for calculating the negative interest to clients.

It is further noted that AIB can charge negative interest on combined balances held by solicitors on behalf of clients in excess of €1 million when that balance is: a. Variable on a monthly basis; b. The interest rate currently at .5% is also variable on a monthly basis.

Practitioners should communicate with their clients to: 1. Make clients aware of the existence of negative interest rates; 2. Explain how the interest rate will affect the client in relation to the rate itself and the legal fee and VAT chargeable as set out above.

HIGH COURT ORDERS

To obtain orders online the following will assist. To request a plain copy Order send email request to: HighCourtBespeaks@courts.ie

For an attested copy Order, to be collected in Central Office on the day following the request, email request to: highcourtattestedorders@courts.ie

For Bail orders, injunctions, Orders required for appeal (where there is insufficient time to apply by email) or any other Order which is urgent or time-bound can be provided at the public counter in the Central Office. The Order in this case is now perfected, for an attested copy please email: highcourtattestedorders@courts.ie, for a plain copy please email highcourtbespeaks@courts.ie

Please note that €15 stamp duty applies to any printed order, whether attested or not, subject to the usual exemptions.

Barra O Cochlain, DSBA Litigation Committee

NEW RULES ON REMOTE SWEARING OF AFFIDAVITS

A new statutory instrument was published in Iris Oifigiúil on 26th of March 2021 which amends Order 40 of the Rules of the Superior Courts to provide for remote swearing of affidavits and the use of a business address by a deponent, where appropriate. The new Rules should assist solicitors in circumstances where it may not be practicable for a client to attend a solicitor’s office for legitimate reasons, such as the need to self-isolate or restrict movements due to Covid-19.

Rule 9(2) allows an affidavit to be sworn by a deponent by videoconference, where it is not practicable for the deponent to attend in the physical presence of the authorised person before whom the affidavit is being sworn (“the Officer”).

Rule 9(3) sets out the following conditions that must be complied with in relation to remote swearings: • the Officer shall be provided in advance or at the videoconference with a copy (which may be in electronic form) of the affidavit, copies of any exhibits referred to in it and a certified copy of the relevant document intended to be used to verify the deponent’s identity; • the Officer shall be satisfied that the videoconference facility enables the deponent to see and hear the Officer and to be seen and heard by the Officer; • the Officer shall ensure identification of the deponent has been met before the affidavit is sworn; • the Officer shall be satisfied that the appropriate sacred text for taking the oath is available to the deponent; • during the videoconference and within sight and hearing of the Officer, the deponent shall produce the original of any relevant document intended to be used to verify the deponent’s identity; shall identify each page of the affidavit and any and every exhibit referred to in it, shall sign or mark any and every exhibit, and shall sign and swear the affidavit; • the sworn affidavit and any and every exhibit referred to in it shall immediately following the videoconference be sent to the

Officer, for attestation by the Officer; • the Officer shall before attesting the

affidavit and signing or marking any and every exhibit referred to in it, be satisfied that the document (and each and any exhibit) is the same as that which had been identified to him/her during the videoconference and, where relevant, sign and append to the affidavit the certified copy of the relevant document used to verify the deponent’s identity, and • the jurat of the affidavit shall indicate the date on which the affidavit was made by the deponent, the place at which the

Officer was when taking the affidavit and the fact that the affidavit was sworn using a videoconference.

Joe O’Malley, DSBA President

Reasons must be Stated

The High Court has recently considered a Labour Court judgment and the reasoning provided in that decision in the case of the State of Kuwait v Nada Kanj [2021] IEHC 395. Siobhán Lafferty outlines how the appeal of the Labour Court’s decision was allowed and that the case was remitted back for a further determination

Background

In this case, the Complainant was employed at the Kuwaiti Cultural Office (the “Appellant”) in Dublin as an academic adviser from 2007 to 2017. She brought a claim to the Workplace Relations Commission (“WRC”) under the Unfair Dismissals Acts 1977-2015 against the Appellant for her dismissal from her role. The Appellant argued that the WRC did not have jurisdiction to consider the complaint as the Appellant was claiming sovereign immunity. The WRC agreed with the Appellant on that point.

The WRC decision was thereafter overturned by the Labour Court whose determination found in favour of the Complainant. This was based on customary international law, and in particular the provisions of Article 11.2(a) of the United National Convention on Jurisdictional Immunities of States and their Property, 2004 (the “Convention”). The Labour Court therefore found that the Complainant was entitled to maintain her claim and that the Appellant could not invoke sovereign immunity.

Appeal Before the High Court

The main issue before both the WRC and the Labour Court was whether the Complainant’s role as academic adviser could be held to have been engaging in the exercise of governmental authority on behalf of the State of Kuwait.

The Appellant appealed the determination on a number of grounds, including: • that the Labour Court failed to engage the evidence that had been before it and had failed to give reasons for the conclusion that it reached at the end of the determination; • that the Labour Court had applied the wrong test and in particular they had looked for extra factors other than those specified in Article 11.2(a).

Counsel for the Complainant argued that the High Court’s role was limited on appeal on a point of law and that therefore the Court was not entitled to assess the correctness of the decision reached by the Labour Court but rather just to assessing its lawfulness. It was further argued that when the decision was considered as a whole, it was a comprehensive decision and therefore it could not be suggested that the reasons for the decision were unknown, even though the final decision was relatively short. It was also pointed out that the decision had considered Irish case law, as well as the case law from the European Court of Human Rights and the Court of Justice of the European Union.

Siobhán Lafferty is a solicitor at Reddy Charlton and specialises in Employment and Regulatory law

Submissions on Behalf of the Parties

As noted, the Appellant argued that the Labour Court had failed to provide any, or any adequate reasons, as to why it had reached the conclusion that it had. There was a clear conflict in evidence between the parties, and that additional to the oral evidence procured, there was documentary evidence showing that the Complainant had a Master’s degree and was in receipt of a salary (including expenses) of around €44,000. It was also shown that there had been an annual fund of approximately €50million disbursed among around 500 Kuwaiti students in Ireland. These factors, it was argued, showed the high level in terms of responsibility and financial importance of her role.

The point here was that the Appellant sought to show that there was evidence which the Labour Court had not engaged with; and while on the one hand the Labour Court had provided a summary of the evidence and the law with a conclusion, it had not given reasons for coming to that conclusion.

The Appellant also argued that the Labour Court had failed to explain its reasons for departing from certain case law on the issue of sovereign immunity, including the Supreme Court case of Government of Canada v Employment Appeals Tribunal and Burke [1992] 2 IR 484.

Finally, the Appellant argued that the Labour Court had applied the wrong test. It viewed the Labour Court’s determination to mean that it had applied a three-tier test in that the Complainant’s role did not involve either: (i) the exercise of any public powers; or (ii) governmental authority; and (iii) did not touch on the business of the State of

Kuwait.

It was argued that this placed the threshold too high as Article 11.2(1) of the Convention provided only that the employee had to be engaged to perform functions “in the exercise of governmental authorities.”

Thus the Appellant argued that further to these two issues, the Labour Court had erred in law and the decision should be set aside.

On the other hand, the Complainant argued that the High Court was not entitled to overturn the decision merely because it would have come to a different conclusion on the evidence. Further, it was submitted that in looking at the determination, the High Court must look at the entirety of the decision and not just the concluding paragraphs thereof. It was pointed out that when looking at the decision as a whole, it was clear that the Labour Court had

While on the one hand the Labour Court had provided a summary of the evidence and the law with a conclusion, it had not given reasons for coming to that conclusion

This case acts as a strong reminder of the requirements on such bodies to provide clear reasons for their decisions, and to outline which evidence they prefer when necessary

had regard for all of the evidence – both oral and documentary – that was before it, and had made frequent reference to the Government of Canada case.

Essentially it was put forward for the Complainant that it was quite clear that the Labour Court had preferred the Complainant’s evidence and that that was a finding which was open to the Labour Court on the basis of the evidence before it.

The Complainant also outlined that the Labour Court had taken the case law into consideration in some detail and thereafter come to its conclusion, making the decision unimpeachable.

Finally it was also submitted that the Labour Court had not applied the wrong test with regard to Article 11.2(a) as they were essentially just different ways of saying the same thing. It was put that the essence of the provision was that the employee must exercise some degree of governmental authority, or policy, on behalf of the state by which she was employed and there was no evidence that the Complainant did that.

Judgment

Barr J considered the above and highlighted that the general duty to give reasons is well established in Irish law. He referred specifically to the Court of Appeal case of Bank of Ireland Mortgage Bank v Heron [2015] IECA 66 which “makes it clear that where there is a conflict of evidence between the parties, it is essential that the decision maker engages with the evidence and resolves the conflict one way or the other”.

If directors act in good faith, honestly and responsibly, Courts will be slow to impose personal liability in light of the pandemic, but this will require pro-activity and demonstrable evidence for their actions, in line with the ODCE Guidelines and the case law examined herein.

Having regard to other cases, Barr J pointed out that it was particularly important to cases where there was a dispute of evidence, and that a judge must explain why certain evidence was preferred over other evidence.

He noted that while the Heron case referred to the duty of a court to give reasons, he was satisfied that such a duty applied to all decision makers. He noted that “the decision maker is entitled to reach whatever decision he or she regards as appropriate on the evidence, but it is incumbent upon them to state clearly why they are accepting certain evidence and rejecting other evidence called on behalf of the opposing party.”

Further, Barr J also referred to the well-known employment case of Nano Nagle v Daly [2019] IESC 63 and McMenamin J’s position that the statutory duty under which the Labour Court operates provides that, on request, it should set out a statement of ‘why’ it reached its determination.

In considering these in light of the case before him, he outlined that the key issue was that of whether the role of academic adviser was involved in rudimentary administrative tasks or in fact whether it could be said to involve the implementation of policy or governmental authority of the State of Kuwait.

Barr J considered the conflicting evidence that was before the Labour Court. He noted that the Labour Court was entitled to come to a conclusion that it preferred one set of evidence to the other, but also that it was obliged to set out the reasons why it was rejecting some or all of the evidence led by the Appellant.

The judge considered that the determination provided a detailed summary of the background facts, evidence and law in the area, but then went on to make a bald conclusion, without any explanation as to how it reached that conclusion. He did not consider that the Labour Court had engaged with the conflicting evidence or why it had decided to prefer the evidence of the Complainant. He stated that “In essence, the Labour Court had to state clearly why it came to the conclusion that the claimant did not come within Art. 11(2)(a) of the Convention. It did not do that.”

On the basis that the Labour Court did not set out its findings of fact and thereafter apply the relevant legal authorities, he allowed the Appellant’s appeal on the ground that the Labour Court failed to give adequate reasons for its decision.

Barr J also allowed the appeal on the ground that the Labour Court appeared to have applied the wrong test, to the extent that it appeared to have applied three factors in determining whether or not the Complainant came within the provisions of Article 11.2(a) of the Convention. He viewed that the Labour Court’s position was that the Complainant did not involve either the exercise of public powers, or governmental authority and did not apply to the business of the State of Kuwait, that this was a three part test for sovereign immunity to apply and was not the correct interpretation of Article 11.2(a); it merely required that the employee be recruited to perform particular functions in the exercise of governmental authority.

As a result, the High Court was satisfied that the Labour Court committed an error of law in applying the wrong test in determining whether sovereign immunity was available in the circumstances of the case. The appeal was also allowed on this ground of appeal.

Therefore the Labour Court’s determination was set aside and the case was remitted back to the Labour Court for determination.

Conclusion

There is no doubt that this is a time of change for disputes in employment law. Further to the Zalewski case [2021] IESC 24, procedural changes to the Workplace Relations Commission and the Labour Court are set to take place. This case acts as a strong reminder of the requirements on such bodies to provide clear reasons for their decisions, and to outline which evidence they prefer when necessary. Otherwise the Labour Court may well find itself subject to further appeals on this basis.

Finally, it will be worth keeping an eye out for the remitted judgment of the Labour Court in this case. The substantive issue of sovereign immunity in this case is particularly interesting, especially where the employee’s position with the Kuwaiti Cultural Office appears to be so marginal in terms of whether sovereign immunity will cover the Office or not. P