Parchment Summer 2022

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D UB LIN SOLICITORS B AR ASSOCIATION MAGAZ INE | SUMMER 2022 | ISSU E 92

HARM ON INTERNET

Legislation afoot as law plays catch-up

FACIAL RECOGNITION TECHNOLOGY Garda powers to be enhanced ASSISTED DECISION-MAKING (CAPACITY) ACT New regime for practitioners


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Summer 2022 dsba.ie

From the Editor

W

elcome to the summer edition of the Parchment. This edition is packed full of articles from many facets of practice and of relevance to practitioners. The past few months have seen society and the Courts back in ‘full swing’. The Dublin County Registrar Rita Considine and the Courts Service staff deserve great credit for getting through the large backlog of Motions arising from Covid19. Remote Courts are saving parties a great deal of time regarding travel and logistics, and the blend of mix between virtual and physical sittings before the Superior Courts must be hailed as a success. ersonal injury litigation continues to fall off a cliff. Genuine laintiffs who suffer injuries are the real losers. AB ( ersonal njuries Assessment Board) awards are smaller than ever before and it is not unusual now to see assessments below €5,000. What this will mean for the profession is that unless Solicitors diversify or specialise in some other area,

there will be career fatalities. Our colleagues at the Bar will also be greatly affected by the personal injuries death knell. I hope that those tracking the reduction in insurance premiums that were promised once this reform kicked in, are satisfied that the insurance industry is passing substantial savings on to customers. On a brighter note, the new regime provided under the Assisted Decision- aking (Capacity) Act is expected to soon commence and this should provide a new line of work for some Solicitors. Áine Hynes SC sets out what this new system will mean for Solicitors in practice see pages - 0. Never before has an end of term been so anticipated. The opportunity to take a holiday and switch off from the demands of work will be relished. Have a great summer break.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2021/2022

DIEGO GALLAGHER DSBA President

SUSAN MARTIN DSBA Vice President

JOAN DORAN Chair of Practice Management

KILLIAN O’REILLY Chair of Litigation Committee

AVRIL MANGAN

JESSICA HICKEY Chair of Probate & Tax

MATTHEW KENNY Treasurer

PAUL RYAN Honorary Secretary

NIALL CAWLEY Programmes Director

RONAN McLOUGHLIN Chair of Property Law Committee

CIARA O’KENNEDY Chair of Employment Law Committee

GERARD O’CONNELL Chair of the Parchment Committee

CIARA HALLINAN Chair of Criminal Law

EIMEAR O’DOHERTY Chair of Inhouse

PATRICK LONGWORTH Chair of the Younger Members Committee

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.

The DSBA has moved…. After several years on Dawson Street, the Office of the DSBA has moved to the Capel Building, Dublin 7. Please note our new address and DX below:

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

PUBLISHED BY The Dublin Solicitors Bar Association, Unit 206, The Capel Building, Mary’s Abbey, Dublin 7 DSBA OFFICE, T: 01 670 6089 F: 01 670 6090 E: maura@dsba.ie DX 200206 Capel Building W: www.dsba.ie ADVERTISING ENQUIRIES Sharon Hughes T: 086 871 9600

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

WHEN YOU HAVE FINISHED WITH THIS MAGAZINE PLEASE RECYCLE IT.

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Summer 2022

Contents 6

DSBA Law Book Awards

8

Transitioning to the Assisted DecisionMaking (Capacity) Act

Judging panellist Keith Walsh pores over the runners and riders

Áine Hynes SC carefully assesses what the new regime means for solicitors in practice

12

Landmark General Retention of Data Ruling Adam Finlay and Lisa Leonard review the recent ruling by the EU’s Court of Justice in the Graham Dywer appeal

14

Enforcement of Family Law Court Orders Susan Martin, Vice-President of the DSBA, sets out the procedure to enforce the most common types of Family Law Orders

20

Law plays Catch-up with Harm on Internet

06

Michael O’Doherty BL says that legislation is finally afoot to deal harmful material posted online

24

GAA’s own Goal in Disciplinary Hearing James Meighan outlines a recent case where the GAA’s Disciplinary Committee failed to follow procedures

28

Cryptocurrency Estate Planning Issues John Gill and Maeve Lochrie identify and consider cryptorelated issues that might emerge

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

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Summer 2022 dsba.ie

Contents

REGULAR FEATURES 01 Editor’s Note 04 President’s Message 63 Photocall

20 32

Facial Recognition Technology and Gardaí Sean McElligott and Anne Bateman analyse new legislation that may give Gardaí the power to use enhanced technology

38

Lack of Detail May Prove Costly Jason Harte looks at the Supreme Court decision of Bank of Ireland Mortgage Bank v O’Malley re: debt litigation

40

The Remote Workplace – Health and Safety Issues Sinead Byrne looks at how a myriad of Health and Safety Legislation may apply to the remote working environment

48

Solicitors Accounts Regulations 2022

32

Niall Cawley and Susan Martin assess the draft regulations expected to be implemented this year

50

Data Protection Claims

54

Pension Reform

56

Use of CCTV in Disciplinary Processes

The rights of data subjects to compensation arising from a data breach is examined by Mark Finan BL and Caroline McGrath BL

Lorna Osborne opines that Ireland is moving closer to a Pensions Auto-enrolment Scheme

Tríona Sugrue and Bernard Martin scrutinise a recent case that dealt with the use of CCTV footage for disciplinary purposes

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Message from the President

Change for the Better

O

ne of the biggest casualties of working from home has been the “water cooler” moment, the kind of important interaction that takes place that is essential for collegiality and innovation. As we emerge from the pandemic, one of the DSBA’s priorities is to facilitate reconnection and collegiality. The DSBA has successfully restarted in-person seminars. We have had four well attended in-person seminars since March. It is clear from the hubbub at the coffee breaks that these have been welcome opportunities for solicitors to renew friendships and to discuss legal issues. n-person events have also given the opportunity for water cooler moments to obtain feedback from our members. Feedback received has been that solicitors are “burned out” after two years of crisis management and rapid changes in the legal and wider world. Work has “mushroomed” into a blur of emails and new online systems with constant pressure to respond quickly. For many, working from home has meant the working day seems to go on forever. There is no doubt that there have been some changes for the better. Remote Court hearings facilitate efficiencies for solicitors. Cutting out travel and the “waiting around” is a time saver. However, this also strips us of another water cooler moment and may have the consequence of reducing opportunities to have productive informal discussions to settle cases. The pace of change in how we deliver legal services should give cause for pause for review both in terms of our ability to deliver quality of service to the consumer and the wellbeing of solicitors themselves. In terms of the latter, I highlight the excellent resources that exist to support solicitors. The DSBA Consult a Colleague telephone line is staffed by experienced solicitors and has supported solicitors for many years. The confidential number is 01 284 8484 if you are a colleague in need. The DSBA is committed to supporting our members and providing opportunities for promoting collegiality. We continue to deliver a programme of online and in-person seminars. We held a number of recent social events such as a Table Quiz attended by over 150 DSBA members which raised over €5,000 for the Red Cross Ukraine Appeal. At the recent DSBA Managing Partners Lunch, our guest speaker was former Taoiseach and chair of the Promotion of Irish Law Implementation Group, John Bruton, who

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shared some fascinating insights into the law and recent global developments. Upcoming events include a golf outing and a hill walk. The DSBA Solicitors’ Football League has just kicked off with firms entering. Our committees continue to meet both online and in-person and are a great opportunity to share knowledge and friendship between colleagues. I invite any member interested in participating in these social activities or joining a committee to contact me via Maura Smith at maura@dsba.ie. Our focus now shifts from the crisis management of the pandemic to real challenges in our profession, many of which have existed since long before the pandemic. The DSBA continues to keep the perennial issue of Professional Indemnity Insurance in our sights and we will continue to represent our members in this area. The Law Society has proposed new Solicitors Accounts Regulations and we have formed a working group to review and make representations. We have also set up a working group to see how the DSBA can best support the implementation of the Dignity Matters report recommendations. We continue to advocate on access to justice issues such as the Court system that lacks resources both in terms of facilities and personnel. According to the European Commission Justice Scoreboard, Ireland had the lowest number of judges per 100,000 inhabitants in the EU in 2020. Ireland was also third from bottom for spending on law courts as a percentage of GDP in 2020. The long-standing under investment in

the Irish legal system damages the rule of law. Examples include the failure to advance the construction of the family law courts in Hammond Lane and the unacceptably low rates of legal aid in both criminal law and family law. We should consider other steps to make justice accessible and to reduce the administrative burden on solicitors and their clients. The DSBA, led by our Vice President Susan Martin, is currently exploring how Third Party Managed Accounts could be implemented as an alternative to client accounts to reduce risk and relieve solicitors of a significant regulatory burden. Another change that could benefit our clients would be the introduction of lower urope-wide AT rate for legal services. The DSBA endorses the recent statement by the Council of Bars and Law Societies in Europe welcoming the Draft Council Directive on VAT which includes some categories of legal services. The fabric of our society depends on the rule of law and a legal profession that is independent and trusted. It depends on a justice system that is resourced and accessible. The fragility of the rule of law can be seen with the despicable attack on the people of kraine. We solicitors will continue to be a bastion of democracy and play our essential role in society today. I hope that, in order to support you in doing this, that you get plenty of “water cooler” moments. Never forget that you are only ever a call or a coffee away from a colleague. Enjoy the summer. Diego Gallagher, DSBA President


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DSBA Law Book Awards After an enforced absence of two years due to the Covid Pandemic, the DSBA Law Book Awards are back. Judging panellist Keith Walsh pores over the runners and riders

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he last awards took place in February 2020 when then DSBA President Tony O’Sullivan presented the Book Awards for books published between 1st January to 31st December 2019. This year, the awards will cover Irish Law books published in 2020 and 2021. In this edition of the Parchment we outline the shortlist of the Irish Law books published in 2020 with the shortlist of the books

published in 2021 to follow in the autumn edition of the Parchment. The judging panel for the DSBA Law Book awards are: John Geary, Stuart Gilhooly, Áine Hynes and Chair Keith Walsh. Sponsors of the Law Book Awards in previous years have been: Stephen Fitzpatrick & Co., Legal Costs Accountants, Law Society Finuas Skillnet and Byrne Wallace Solicitors.

A. Law Book of the Year

Internet Law Michael O’Doherty BA, BL is a practising barrister. He practises in general civil litigation, with a particular expertise in the law of the internet and social media. He is also the founder and former Managing Director of the VIP Magazine Group – Ireland’s biggest consumer magazine publisher. March 2020, €225; 1,208 pages Bloomsbury Professional 6 the Parchment

McGrath on Evidence, 3rd Edition Declan McGrath is Senior Counsel who is also a co-author of Delany and McGrath on Civil Procedure. Emily Egan McGrath is a practising barrister who is also a co-author of Delany and McGrath on Civil Procedure. December 2020, €425; 1,260 pages Round Hall/Thomson Reuters

Banking and Security Law in Ireland, 2nd edition William Johnston, MA (Dub) Solicitor, was a partner in Arthur Cox for 30 years, is a former chair of the Banking Law Division of the International Bar Association and is currently a member of the Company Law Review Group and external examiner in Banking Law for the Law Society. Sept 2020, €295, 880 pages Bloomsbury Professional


Summer 2022 dsba.ie Keith Walsh is a Dublin solicitor practising primarily in the area of family law and family disputes. He is a former President of the DSBA

Evidence in Criminal Trials 2nd Edition Liz Heffernan, LLB (Dublin), LLM (Dalhousie), LLM & JSD (Chicago), MEd (Dublin), BL, is an Associate Professor and Fellow at Trinity College Dublin. She has been teaching evidence in Irish law schools since 2001 and has published nationally and internationally on the subject. She is a member of the Council of the Association for Criminal Justice Research and Development (ACJRD) and of the Editorial Board of the International Journal of Evidence and Proof. Oct 2020, €205, 1,072 pages Bloomsbury Professional

Child and Family Law, 3rd edition Professor Geoffrey Shannon is the former Chairman of the Adoption Authority of Ireland and former Government Rapporteur on Child Protection. October 2020, €365, 1,640 pages Round Hall/Thomson Reuters

DSBA Book Award Nominations

Charleton and McDermott’s Criminal Law and Evidence 2nd edition Peter Charleton: Judge of the Supreme Court and formerly a judge in the Central Criminal Court and the Commercial Court. He lectured in criminal law in Trinity College Dublin for two years and had a wide practice at the Bar. He has authored numerous articles on a range of legal topics in academic journals and has lectured in Ireland, Britain, America and China on an occasional basis. Paul A McDermott: a leading member of the Inner Bar, he lectured for over 20 years

in UCD Law School and was a noted commentator in print and on the radio and television on legal affairs. Books on stare decisis, contract law and prison law demonstrate the range of this UCD- and Cambridge-educated scholar and advocate of legal realism. He died during the writing of this volume. Ciara Herlihy: a graduate of University College Cork with a sparkling academic record, she worked for three full years with Mr Justice Charleton as his judicial assistant both in the Supreme Court and as legal researcher during the 18 months of the Disclosures Tribunal. Stephen Byrne: one of the most respected members of the Irish Bar, he has developed a wide practice and is noted as an expert on commercial litigation. He worked as a judicial fellow prior to coming to practice and his insider’s knowledge of how both judicial reasoning and advocacy work in practice inform his approach. November 2020, €275, 1,400 pages Bloomsbury Professional

B. Practical Law Book of the Year

Byrne and McCutcheon on the Irish Legal System, 7th edition Raymond Byrne has been Director of Research with the Law Reform Commission since 2003. Paul McCutcheon BCL, LLM, LLD is Professor of Law at the University of Limerick. Dr Laura Cahillane is a lecturer at the University of Limerick. Emma Roche-Cagney is a barrister practising in the public sector Nov 2020, €99, 1,152 pages

Wills – Irish Precedents and Drafting, 3rd edition Brian Spierin is a leading expert in Ireland on the Law of Succession and Probate. He is in practice at the bar since 1985 and was called to the inner bar in 1999. He has been involved with wills for nearly forty years, as a member of staff of the High Court Probate Office, a law lecturer, a published author and as a junior and senior counsel. Dec 2020, €235, 416 pages Bloomsbury Professional

Lifetime achievement award/outstanding contribution to the legal profession and/or legal scholarship Each year, the Judging Panel recognises and honours one individual who has made an outstanding contribution to the legal profession and/or legal scholarship. Previous recipients have included: Tom Courtney, Michael Peart, Professor Geoffrey Shannon. the Parchment 7


Transitioning from Wardship to the Assisted Decision-Making (Capacity) Act t is anticipated that the Assisted Decision- aking (Capacity) Act 20 5 (“the 20 5 Act”) will be fully commenced later this year. ine Hynes SC carefully assesses what this means for solicitors in practice

T

he 20 5 Act replaces the wardship jurisdiction which has existed, in one form or another, since the statute of dward in 2 the Statute of the ing’s rerogative. The 20 5 Act represents a new era in legal capacity in the state. t abolishes wardship and stipulates that all wards must be reviewed and discharged from wardship within three years of the coming into force of the 20 5 Act. t introduces a new system of Assisted Decision- aking, which is designed to take into account, the relevant person’s views and wishes, in the context of any decision being taken which affects them. A summary of the key changes can be found at the end of this article. While many of the current capacity applications in wardship are made to the High Court, the vast majority of court applications under the 20 5 Act will be in the Circuit Court. t is intended that legal aid will be available for these applications. Section 52 of the 20 5 Act amends the Civil egal Aid Act (“the Act”) and specifies that a party to an application under art 5 of the Assisted Decision- aking (Capacity) Act 2015 shall qualify for legal advice. The 20 5 Act also relaxes the qualifying criteria for legal aid for applications under the 20 5 Act, by amending section 2 of the Act. t is forecast that there will be some ,200 applications to the Circuit Court following commencement of the 20 5 Act. Thus, solicitors can expect there will be a significant increase in legal work in this area of law. This article aims to provide practitioners with an update on the commencement of the 20 5 Act, to

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inform solicitors that wardship applications (where necessary) should continue to be made up to date of commencement and to provide an overview of the new legal capacity framework under the 20 5 Act. urther detailed articles will be provided by the DSBA ental Health and Capacity Committee on the specifics of Circuit Court applications High Court discharges from wardship creation of Advanced Healthcare Directives and nduring owers of Attorney when the 20 5 Act is finalised and the Circuit Court and High Court rules can be completed. The 20 5 Act was signed by the resident of reland on 0th December, 20 5. Thus far, there have been three commencement orders made. Two inisterial Orders dated 7th October, 20 , commenced certain sections of the 20 5 Act. The most significant of these commenced art of the 20 5 Act, establishing the new role of the Director of the Decision Support Service and ine lynn, Solicitor took up this role in October 20 7. The third inisterial Order dated st ebruary, 202 , was most welcome. t commenced Section 7( ) of the 20 5 Act, repealing the arriage of unatics Act (“the Act”). The Act effectively prevented Wards of Court from marrying and the repeal of the Act was made on foot of a challenge to that Act by a proposed Ward of Court who wished to marry. t was anticipated that the 20 5 Act would be fully commenced in une 2022. However, significant amendments were made to the Act by the General Scheme and Heads of Bill on the Assisted Decisionaking (Capacity) (Amendment)Bill, 202 , published last ovember. That Bill is currently progressing


Summer 2022 dsba.ie Áine Hynes SC is a partner at St. John Solicitors. She is chair of the DSBA Mental Health and Capacity Committee

through the D il and the Seanad and is expected to be finalised in October this year. n the meantime, practitioners will have seen the otice issued from the Office of Wards of Court advising of the direction by the resident of the High Court, that all Section 5 Applications would cease being accepted on the 22nd April 2022. This notice was issued to deal with the anticipated commencement of the 20 5 Act in une 2022 and the time required to complete a Section 5 wardship application in advance of that anticipated commencement. The aw Society Taskforce on ental Health and Capacity aw drafted submissions to the relevant ministers warning of the gap this would leave during which the affairs of a person who may lack capacity could not be dealt with. The Society recommended that appropriate transitional provisions be put in place for an orderly transfer from the current Wardship system to new systems under the 20 5 Act. The Department of Children, quality, Disability, ntegration and outh (C D , which now has responsibility for the legislation) has accepted those recommendations. There will now be transitional provisions to ensure that applications made to the Office of Wards of Court, in advance of commencement, will be fully completed, thus ensuring there is no gap. A further otice issued on 2th ay, 2022, advising that the resident of the High Court directed that the Office of Wards of Court will re-commence taking applications under Section 5 with immediate effect and that the Office had been informed that transitional arrangements for wardship

Mental Health Law

applications in being on commencement of the Assisted Decision aking (Capacity) Act 20 5 will be provided for as an upcoming amendment to that Act. Accordingly, where necessary, applications should continue to be made in wardship up to the date of commencement of the 20 5 Act to ensure there is access to bank accounts other assets on behalf of a person who is found to lack capacity to enable insurance to be effected on their properties and to ensure that carers and families will have access to funds on behalf of such a person, to be applied for their benefit.

Three Categories of Decision-Making Under the 2015 Act The new system of supported decision-making under the 20 5 Act, to replace the current wardship system will be Decision-making assistant (private arrangement) Co-decision-maker (to be registered with the Decision Support Service (DSS)) Decision-making representative (requires a Circuit Court application) The 20 5 Act provides for different categories of support or assistance to persons whose capacity is in question or may shortly be in question. t allows those persons to have an input in making decisions about their everyday lives, rather than having decisions made for them by another person. When a person considers his her capacity to be in question or may shortly be in question, they may appoint a decision-making assistant or a co-decision maker. n certain situations, a decisionmaking representative is appointed to a relevant person by the Court.

The 2015 Act provides for different categories of support or assistance to persons whose capacity is in question or may shortly be in question

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Mental Health Law

Decision-Making Assistant

A person themselves may appoint a decisionmaking assistant under section 0 of the 2015 Act

A person themselves may appoint a decision-making assistant under section 0 of the 20 5 Act. This will arise where the appointer considers that his or her capacity is in question or may shortly be in question and needs assistance in making decisions regarding his or her personal welfare and or property and affairs. A decision-making assistant is appointed by way of a decision-making assistance agreement, which will be standard forms of agreements which will be specified and issued by the Director of Decision Support Services (DSS). Decision-making authority remains with the appointer who will be assisted by the decision-making assistant in accessing information, understanding that information and expressing decisions on issues set out in the decisionmaking assistance agreement. This agreement can be registered with the DSS.

Co-Decision-Making (Joint decisions) Where a person considers that his or her capacity is in question or may shortly be in question the person can appoint another person to make joint decisions with him or her in relation to the person’s personal welfare or property and affairs, or both. The relevant provisions are set out in part of the 20 5 Act. The appointment of the co-decision-maker must be in writing and certain formalities will be required to be observed in the format and execution of such agreements. Specified forms of agreement will be issued by the DSS and certain requirements are set out in section 7(5) and there will be further requirements under regulations which have yet to be made by the inister. The co-decision making agreements must be registered to be in force and an application to register the agreement with the DSS, must happen within five weeks of execution of the agreement. A register of co-decision-making agreements will be maintained by the director.

Decision-Making Representative (Court appointment): (Sections 37 and 38) There is a new Circuit Court process for the appointment of a decision-making representative (D R) or the making of Court orders in respect of a relevant person following on from a declaration by the Court that a person does not have capacity under section 7 of the 20 5 Act. The function of a D R is essentially one of substituted decision-making for a relevant person. The D R will perform a similar function to a Committee appointed under the current wardship regime (but in line with the guiding principles of the 20 5 Act). A panel of D Rs has been established by the DSS and some solicitors have been appointed to that panel.

Certain Matters Reserved for the High Court Some of the matters that are reserved for the High Court include Section ( )(a) which states any decision regarding the donation of an organ from a living donor shall, where the donor is a person who lacks capacity, be determined by the High Court, and (b) where an application in connection with the withdrawal of life-sustaining treatment from a person who lacks 10 the Parchment

capacity comes before the courts for adjudication, that application shall be heard by the High Court. Section 5( )(b) where an advance healthcare directive (“AHD”) may concern the life of the unborn, the application must be made to the High Court Section (2) validity of AHD art review of Wards art 0 Detention matters if the person is a Ward, the person’s detention must be reviewed by the High Court, otherwise the review is carried out by a mental health tribunal art (Convention on nternational rotection of Adults) the High Court is the central authority for the purposes of the convention.

Codes of Practice – Section 103 Codes of practice have been drafted for the guidance of persons who are interacting with relevant persons, and these include codes of practice for solicitors. They are available here https www.decisionsupportservice.ie resources codes-practice

Panels to be Established by the Director Section 0 provides that the Director shall establish a panel of suitable persons willing and able to act as (a) decision-making representatives (some solicitors appointed) (b) special visitors (medical practitioners and those with expertise in capacity) (c) general visitors, (those with expertise to assist the director in supervision of decision-making assistants, representatives and co-decision-makers and attorneys to ensure compliance with their functions this panel is established and includes solicitors) and (d) court friends.

Summary of Key Changes Under the 2015 Act Wards of Court system intended to be abolished review of all wards within three years of the coming into force of the 20 5 Act (note minor wardships will continue) unctional approach to assessing capacity given express recognition in statute ew legal processes to deal with decision-making for a relevant person in respect of a relevant decision (decision-making assistants and co-decision makers) ew Court process to seek declarations and orders, including the appointment of a D R in certain circumstances Circuit Court will be the primary court for matters arising under the 20 5 Act except for certain matters reserved for the High Court ew role and office Director of the Decision Support Service to be based in the mental health commission and to take over a number of functions currently exercised by the Office of Wards of Court ew panels to be established by the Director of decision-making representatives, special visitors, general visitors and court friends Codes of practice to be prepared by the Director ew AHD provisions ew rules for As Ratification of the Convention on nternational rotection of Adults. P


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Landmark General Retention of Data Ruling Adam inlay and isa eonard review the recent ruling by the Court of ustice of the uropean nion in the Graham Dwyer appeal and assess how it impacts on the retention of data in cases preventing serious crime

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he Court of ustice of the uropean nion (the “C ”) has confirmed that the general indiscriminate retention of traffic and location data for the purposes of preventing serious crime is inconsistent with aw (although certain targeted retention may be permissible), and that the effects of this finding cannot be limited to future convictions. The C has further ruled that any request for access by national authorities to retained data must be subject to a prior review carried out by either a Court or an independent administrative body and that the decision of the Court must be made following a reasoned request by those authorities. The current approach in Ireland was determined not to be sufficient. Graham Dwyer was convicted of murder in 20 5, with location data that had been collected from his mobile phone in uential in securing this result. This data was retained and accessed by An Garda S och na (“AGS”) under the Communications (Retention of Data) Act 20 (the “20 Act”). On appeal, the High Court ruled that the 20 Act was incompatible with law. This was appealed by the State to the Supreme Court, who decided that certain matters should be referred to the C prior to a final ruling. The 20 Act gave effect to the Data Retention Directive (Directive 200 2 C). However, in the case of Digital ights Ireland and Others C / and C / (Digital ights) it was determined by the C that, while combatting serious crime is of great importance, it does not justify the general and indiscriminate retention of all traffic and location data. The C stated that this would constitute a broad and far-

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reaching interference with the fundamental rights of practically all EU citizens. The Data Retention Directive was therefore deemed invalid. This position was confirmed by the C in the case of Tele (Tele Sverige AB v Post och telestyrelsen Secretary of State for the ome Department v atson C-20 5 and C5). However, despite these rulings, no domestic repeal of the 20 Act occurred.

CJEU Ruling Retention of Data Article 5( ) of the Directive on rivacy and lectronic Communications (Directive 2002 5 C) (the “Directive”) permits member states to “adopt legislative measures to restrict the scope of the rights and obligations” provided for therein. In interpreting the scope of this exception, the C considered the objective of the Directive. The C reaffirmed the view adopted in the case of La uadrature du et (La uadrature du et and Others C-5 and C-5 2 ) that Article 5( ) of the Directive enshrines the principle of confidentiality and prohibition of the storage of data, and concluded that this provision re ected the objective of the legislature. The C held that, when Article 5( ) is read in light of this purpose as well as Articles 7, , and 52(2) of the Charter of undamental Rights of the uropean nion (the “Charter”), it is evident that the exception provided therein must be the subject of strict interpretation. The C noted that the justification limiting the rights established in the Directive must be proportionate to the seriousness of the limitation.


Summer 2022 dsba.ie Adam Finlay is a partner in the Technology and Innovation Group at McCann Fitzgerald. Lisa Leonard is an associate in the Technology and Innovation Group at McCann Fitzgerald

n light of this, the C determined that there is a hierarchy amongst the public interest objectives that may justify an interference with rights, and the objective of safeguarding national security exceeds the importance of all others. It is of such importance that it justifies the general and indiscriminate retention of data where the State is confronted with a serious threat to national security which is shown to be genuine, present or foreseeable. The uropean Commission submitted that particularly serious crimes could be treated in the same manner as national security, however, the C ruled that national threats were distinguishable by their nature and seriousness. Therefore, the C confirmed that EU law precluded the general and indiscriminate retention of data for the purpose of combatting serious crime. The C referred to La uadrature du et and confirmed that law does not preclude for the purposes of combatting serious crime The targeted retention of traffic and location data which is limited according to the categories of persons concerned (based on objective and non-discriminatory criteria) or using geographical criterion for a limited period of time; The general and indiscriminate retention of addresses assigned to the source of an internet connection for a limited period of time; • The general and indiscriminate retention of data relating to the civil identity of users of electronic communications systems; and, The expedited retention of traffic and location data in the possession of relevant service providers following a decision of the competent authority that is subject to effective judicial review. The C noted that these measures must ensure that the retention of data is subject to compliance with the applicable substantive and procedural conditions and that effective safeguards against the risk of abuse are in place.

obtained under the 20 Act is a procedural matter for national law subject to compliance with the principles of equivalence and effectiveness. As such, it is a matter for the rish Courts to determine whether any mobile phone data gathered in respect of any criminal investigation should be admissible on a case by case basis, including with regard to Graham Dwyer’s appeal.

Accessing Data

Reform

The C emphasised that access by national authorities to retained data must be subject to a prior review carried out by either a court or an independent administrative body and that the decision of the court must be made following a reasoned request by those authorities. The 20 Act provides that a member of AGS not below the rank of chief superintendent has the power to carry out a prior review of any request for access, and to request that a service provider disclose any relevant retained data. The Telecommunications iaison nit was established within AGS to assist in this task. However, the C determined that this process lacked sufficient independence and impartiality to be compatible with EU law.

The C ’s ruling is a clear reminder that reland’s data retention laws are in need of reform. n 20 7, former Chief ustice urray examined reland’s laws on data retention and access (the “ urray Report”). The urray Report concluded that the 20 Act permitted the universal and indiscriminate retention of data which constituted a breach of law, and recommended that the 20 Act be amended in order to conform to the requirements of EU law as set out in Tele2. The General Scheme of the Communications (Retention of Data) Bill 20 7 (the “Bill”) was published on foot of Digital ights Ireland, Tele and the urray Report. While the Bill is yet to be finalised, it is likely that, as it is progressed, it will take into account the recent findings of the C in the Dwyer case, in order to ensure that any retention of, or access to, traffic and location data (to the extent permissible) is done in a manner that is compatible with law. t is also probable that the Bill will be progressed as a priority in light of the recent findings by the C and amid any rulings on admissibility of this form of evidence by the rish Courts. P

Temporal Effect The C determined that the Courts could not limit the temporal effects of the declaration of invalidity. Therefore, it is possible that past convictions which relied on data obtained under the 20 Act may be appealed. mportantly, however, the C confirmed that the admissibility of evidence

Data Law

The C confirmed that the admissibility of evidence obtained under the 20 Act is a procedural matter for national law subject to compliance with the principles of equivalence and effectiveness

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Enforcement of Family Law Court Orders Susan artin, ice- resident of the Dublin Solicitors Bar Association, sets out the procedure to enforce the most common types of amily aw Orders

“Never give an order that can’t be obeyed.” Gen Douglas MacArthur

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hile the vast majority of litigants are compliant with Court Orders, from time to time it may be necessary for lawyers to seek to enforce compliance through the Courts. Given the varied nature of Orders that can be made in a family law case it is not possible to cover every aspect of enforcement in this article, but have attempted to set out the procedure to enforce the most common types of Order.

Legislation n addition to the Court’s power to deal with contempt, the jurisdiction of the Circuit and District Courts to enforce their orders, comes from statute. The list below is not exhaustive but may be instructive when considering on what basis to proceed with enforcement. Enforcement of Court Orders Act, 1940 Enforcement of Court Orders (Amendment) Act Civil Debt Procedures Act note this act has not yet commenced uardianship of Infants Act Section A D Maintenance of Spouses and Children Act Part III

Enforcing Maintenance Orders Where court-ordered maintenance is not being paid, it is open to the maintenance creditor to make an 14 the Parchment

application to Court to seek enforcement of the Order. rior to the enactment of Section of the Civil iscellaneous rovisions Act, 20 which replaced Section of the nforcement of aintenance Debtors Act 0, it was only possible to recover six months’ arrears of maintenance this has subsequently been amended. One option that the maintenance creditor has is to re-enter the previous proceedings under which the maintenance Order was made. rior to the issue of a otion re-entering the matter, the solicitor should first take instructions on the amount precisely of maintenance owed and also to find out whether there were any extenuating circumstances which prevented the maintenance debtor from making the payment. f, for example, the maintenance debtor has become ill or fallen on hard times, it may be an expensive process for the maintenance creditor without much of a return. f the maintenance had previously been paid into the maintenance creditor’s bank account and is now no longer being discharged, it may be worthwhile to ask the maintenance creditor to gather up bank statements to show the periodic payment is no longer being lodged to the account. Once instructions have been taken on the amount of maintenance outstanding, the next step should be to write to the maintenance debtor with a summary of the debt outstanding and to ask them to engage to resolve the matter. The warning letter should indicate


Summer 2022 dsba.ie Susan Martin is Vice President of the Dublin Solicitors Bar Association. She is principal of Martin Solicitors, Dublin 13

that in the absence of hearing from them, court action will follow should it be necessary to enforce the payment of the maintenance ordered. Outside of an emergency situation, days is a reasonable period for the maintenance debtor to review matters and seek legal advice. Generally speaking, it is not correct for a solicitor to write directly to the client of another solicitor but there are some limited exceptions where this is necessary. Given that enforcement of a Court Order is personal to the maintenance debtor, it is acceptable to write directly to the maintenance debtor to indicate that action to enforce will follow given that they are the party liable. Depending on the type of enforcement required, it may be necessary to serve the maintenance debtor in person, e.g., where it is necessary to serve an Order with penal endorsement. This is also a logical approach given that the case might have concluded some years before and the solicitor then acting on behalf of the maintenance debtor may no longer be acting or have instructions. t is good practice to also send a copy of the letter sent to the maintenance debtor to their solicitor. Once the letter has issued, if there has been no response or a negative response, it may then be necessary to seek to enforce the aintenance Order. n the District Court this can be done by way of issuing a Summons to enforce the Order.

Family Law

n the Circuit Court this is done by way of otice of otion grounded on an Affidavit setting out the details of the default. When making the application to enforce the maintenance order it is worth considering whether it would also be wise to make application at the same time for an Attachment of arnings. This means that the Court can direct a maintenance debtor’s employer to deduct the maintenance from the maintenance debtor’s salary. Separately, prior to issuing the motion, it is necessary for the solicitor to make enquiries to correctly identify the maintenance debtor’s employer. art of the 7 Act sets out the law regarding applications for Attachment of arnings. Before making such application to the Court, it is good practice to write to the maintenance debtor giving him her an opportunity to regulate the situation, and indicating that an attachment of earnings application will be made in the event of continued default. The 7 Act provides that the application for Attachment of arnings is to be made to the Court in the jurisdiction where the Order was originally granted, The Order is directed to the maintenance debtor’s employer. The otion for enforcement should be grounded on an Affidavit of the maintenance creditor setting out (i) details of the Order made for maintenance (ii) details of the default including the precise amount of maintenance owed (iii) details of efforts made to resolve the matter (letters to be exhibited) (iv) the Parchment 15


An Attachment of arnings Order is not confined to employers it can also be directed to pension trustees and other sources of income

exhibiting any documentary evidence to vouch, if available. Before making the Order, the Court has a statutory obligation to permit the maintenance debtor to make representations including on whether the party making the application has an entitlement to be paid the maintenance and whether he she would make payments in respect of the original maintenance order. The attachment of earnings order will be directed to the employer and will outline the amount of protected earnings of the maintenance debtor that is a weekly or monthly sum which must be disregarded for the purposes of the Order. Separately, the Order will contain sufficient detail to identify the maintenance debtor. The Order should also contain the maintenance creditor’s bank details, if funds are to be transmitted via T or address if a cheque is to be sent. The original maintenance order continues even after an attachment of earnings order is made but any amounts paid through the attachment of earnings order are taken in lieu of that amount due under the original maintenance order. An Attachment of arnings Order is not confined to employers it can also be directed to pension trustees and other sources of income.

you, the within named, , neglect to obey this Order by the time herein limited you will be liable to the process of execution including R SO T for the purposes of compelling you to obey the said Order.”) on the non-compliant party. The words of the penal endorsement are important, as recent case law shows ( allace v ealey 20 HC 200). The Order with penal endorsement must be served on the noncompliant party in person (it is possible to make an application to Court for alternative method of service but it would require a Court Order in advance), not on their solicitor. t is good practice to send their solicitor a copy of the letter and Order with penal endorsement. An Affidavit of Service should be made which provides details of the service of the Order on the non-compliant party. A otion can then be brought to re-enter the original proceedings with a view to enforcing the Order or aspects of the Order which have not been complied with. This otion should be grounded on the Affidavit of the moving party and provide details of the original Order, any correspondence with the non-compliant party and their solicitor should be exhibited.

Discharge of Attachment of Earnings Order

The moving party has a choice of what remedy to seek in making this application to enforce. They may seek attachment and committal of the non-compliant party for failing to adhere to a Court Order or they may seek variation of the original Order to ensure compliance. The Circuit Court Rules on Attachment and Committal can be found at Order 7 CCR. They provide that the moving party must first serve the Order with the penal endorsement on the noncompliant party, effecting personal service. Thereafter the moving party can make application for leave of the Court to issue a otion for Attachment and Committal. nless otherwise ordered by the Court, service of the otion and Grounding Affidavit should be personal on the non-compliant party. The Affidavit grounding the otion for attachment should set out in detail the aspect of the Order which has not been complied with and the efforts made to engage with the non-compliant party. Details of service of the Order with penal endorsement should also be set out and exhibited along with any other relevant correspondence including any reply received from the non-compliant party.

When maintenance ceases, say in a case where a child of the parties is no longer dependent, the employer may continue to operate the Attachment of arnings Order. f that is the case, it may be necessary for the maintenance debtor to make an application to the Court to vary or discharge the Attachment of arnings Order. n making this application, the maintenance creditor should issue a otion in the Court where the original attachment of earnings maintenance order was made and it should be grounded on an Affidavit setting out the detail of why the maintenance is no longer payable. Where documentation is available to vouch this reason, this ought to be exhibited, e.g. birth certificate where a child is no longer a dependent by reason of his her age.

Enforcement of other Ancillary Orders Where there is property jointly owned by litigants in a family law case, the Order (Cohabitation Act) or the decree (in matrimonial cases) will often contain ancillary orders which provide for the disposal of that property. Orders are regularly made for deferred sales. n that case, the party not occupying the property might wait some years until the date of the deferred sale has arrived and the party in occupation may wish to continue to reside in the property. This is a rare but not unusual event. Where such an issue arises, it is open to the party wishing to sell the property in compliance with the Order to make application to the Court. Any application to enforce this Order should be made to the Court where the original Order was made. rior to making such application, the non-compliant party should be given an opportunity to comply with the Order and a warning that in the event that they continue to defy the Order that enforcement proceedings will be brought. The next step to be considered in enforcement if the above warning letter bears no fruit, is to serve the original Court Order with a penal endorsement (“ f 16 the Parchment

Attachment and Committal

Variation of the Original Order to Ensure Compliance An Order for attachment and committal is a drastic course of action and it might be possible to avoid such application by asking the Court to vary the original order. or example, if a property is to be sold on foot of the original Court Order and the non-compliant party is residing in the property and refusing to co-operate or obey the Order, it is possible to ask the Court to vary the original Order by, for example, including an Order for the County Registrar to sign in substitution for the parties or, by way of another example, seek for the non-compliant party to vacate the property so that the moving party can take charge of the sale.


Summer 2022 dsba.ie

Family Law

Applications Pursuant to Section 18A Guardianship of Infants Act 1964 – Where Access Order is not Complied with on-compliance with access orders has been a perennial issue for parents and therefore for practitioners. Withholding access can have serious consequences for the relationship between the child and the parent who does not have day to day care of the child. There is now, however, a statutory basis which provides a process for the enforcement of an access order. Section 0 of the Child and amily Relationships Act 20 5 inserted Sections A D into the Guardianship of nfants Act . This provides that in the event that an access order is not complied with, the parent affected can make an application to the Court for enforcement. Applications on foot of Sections A-D should be made to the Court where the access order was originally made. These are innovative sections which permit the Court to provide a variety of remedies. Where the application is made to the Circuit Court, the otion should be grounded on an Affidavit. The Affidavit should set out the details of the Order and the details of non-compliance. Any correspondence regarding compliance should be exhibited in the Affidavit. The Court, in making any order, will consider whether the applicant was unreasonably denied access and whether the access is in the best interests of the child. The views of the child, where appropriate, should be taken into account by the Court in making the

Order. The Court can also order that the parties engage in family counselling and or a parenting programme. urther options open to the Court include making the respondent responsible for the costs of the application and or the expenses incurred by the applicant in attempting to take up access. Section C of the Act provides that the Court can make an order to vary or terminate or enforce any custody or access order made.

Enforcement of Access Order Where Parent Refuses to Take up Access rior to the enactment of Section D of the Act, this was a difficult issue to resolve, that is, where a parent refused to take up access. Section D now means that where a parent is failing to exercise their access order, that the Court can order that defaulting parent to reimburse the other parent any necessary expenses incurred by that parent as a result of the first parent to exercise access. xpenses would include travel, lost remuneration and any other expense that the court might allow. This will provide a financial remedy to those parents who are let down unreasonably by the parent who does not exercise their access. n summary, prior to embarking on an application to enforce a court order, careful enquiry should be made into the circumstances of the making of the order, the circumstances of both parties and the precise nature of the breach of the order. A practical approach ought to be taken to avoid having to make a further application in the future and, accordingly, variation of the Order as well as its enforcement might be considered. P the Parchment 17


Jackie Buckley is a partner and Head of Property at Hayes Solicitors

Precedent

DSBA Precedent Licence Jackie Buckley of the DSBA Property Committee reports on the new DSBA Precedent Licence which is now available to practitioners

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he DSBA Conveyancing Committee was recently delighted to publish a precedent Licence for use by practitioners. Practitioners will note that the Licence follows the format previously adopted by the DSBA in relation to its Short Term Business Letting Agreement. The Licence has been prepared on the basis that Practitioners will be able to populate and delete the relevant sections. It is up to each Practitioner to tailor the Licence to the agreed commercial terms. The Committee views this Licence as being suitable for the licence of a licensed area in a larger building, such as an office. The precedent Licence follows the following format: 1. A memorandum of the headline terms and execution clauses. 2. The First Schedule which sets out the matters mutually agreed between the parties. 3. The Second Schedule which sets out the Licensee obligations. 4. The Third Schedule which sets out the Licensor obligations. 5. The Fourth Schedule which sets out the

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Guarantor obligations. Practitioners need to be very mindful that they are not inadvertently creating a Lease. The fundamental criteria for a Licence are as follows: 1. It does not create any legal interest in the Property. 2. It does not give exclusive possession and is merely a permission to temporarily use the Property subject to a right of relocation. 3. Limited maintenance obligations. 4. Prohibitions on alterations by the Licensee. 5. That it is a mere personal permission not capable of alienation. The Committee strongly recommends that the Licence is used for a period not greater than 12 months. It is extremely important that Practitioners resist any amendments to clauses which establish the nature of a Licence as opposed to a Lease. It is also important not to fall into the common trap of using language more commonly used in a Lease or a Deed such as a covenant to perform obligations and referring to payments as “Rent” rather than “Licence Fee”. The Licence can be purchased from the DSBA office. P


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Law Plays Catch-up with Harm on Internet While the law has been slow to react to the challenges posed by the internet age, Michael O’Doherty BL says that legislation is finally afoot which proposes to deal with the unique challenges of harmful material that is posted online

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he internet has forever changed the way that certain types of harm can be in icted. Reputational damage through defamation financial damage through fraud and intellectual property violations and psychological damage through bullying and harassment are now regularly performed online. n pre-internet times, most of these harms were performed directly by one party against another. n those circumstances, the identity of the defendant, and their potential liability, was relatively clear-cut. The most obvious difficulty with online harm is the existence of a new category of participant the internet intermediary whose liability for the harm they facilitate has been a source of contention for much of the past two decades. egislation currently in the pipeline proposes to deal with this new category of participant, and this article will consider the proposals contained in the Online Safety and edia Regulation Bill and the review of the Defamation Act 200 . n so doing, it will focus primarily on material hosted by social media platforms, and the new provisions which propose to impose increased regulation on such platforms.

Internet intermediaries – Who are They? ost legal proceedings involving the internet feature a combination of three participants in online 20 the Parchment

communications - the party that creates the content, the party that accesses the content, and the party which enables the first two to communicate, namely the intermediary. While some intermediaries simply connect users to the internet, others actively facilitate and control the sharing of user-generated content. Generally speaking, internet intermediaries can be broken down into four distinct groups Internet service providers which provide services for accessing and using the internet Internet search engines E commerce intermediaries such as Ama on and eBay Social media platforms who allow their users to upload content. These can be sub-divided into social networking platforms (e.g. acebook and inked n), micro-blogging platforms (e.g. Twitter), video and photo sharing websites (e.g. ouTube and nstagram) and instant messaging platforms (e.g. WhatsApp).

Regulation of Social Media Platforms Although acebook, Twitter and ouTube are in existence for more than 5 years, the legislature has for a long time adopted a “soft-touch” attitude, allowing them largely to create, and abide by, their own rules. These terms and conditions of use dictate what type of content they allow to be uploaded, and the circumstances under which they remove or block such material.


Summer 2022 dsba.ie Michael O’Doherty BL is a practising barrister, and the author of Internet Law, published by Bloomsbury Professional. Michael lectures on Internet Law in the UCD Sutherland School of Law and King’s Inn

The primary piece of legislation which has governed these platforms has been the -Commerce Directive (Directive 2000 C). The Article “Hosting” defence provides social media platforms with immunity from liability for any unlawful content they host, so long as (a) they have not been made aware of its existence by a third party, and (b) having been made aware, they act “expeditiously” to remove or disable it. The difficulty with this provision is the interpretation of the word “expeditiously”, whose elasticity has often been stretched to breaking point by platforms which take weeks, sometimes months to deal with complaints about material uploaded by their users.

The New Legislation Before proposed domestic legislation is considered, one should first of all note the most significant wide initiative in this area, the Digital Safety Act. The Act proposes to update the 22-year old -Commerce Directive, and mandate that online platforms have in place “notice and action mechanisms”, similar to the notice and takedown systems that many already have, which will allow complaints to be made about illegal content. They must also provide reasons to a user whose content has been blocked or removed, and must have an internal complaints system so that a user can lodge a complaint against a decision that has

Social Media/Defamation

been made to block remove such material, or suspend disable their account altogether. Online Safety and Media egulation Bill This piece of legislation will update the Broadcasting Act 200 and create the office of the Online Safety Commission. This Commission will be tasked with regulating all online services which host user-generated content, to include the giant social media platforms. t will create an Online Safety Code to govern the standards and practices to be observed by such platforms, and to ensure that they take measures to minimise the availability of harmful content on their platforms and provide guidelines as to user complaint issue handling mechanisms. Two particular aspects of the Bill have been the subject of recent commentary and are currently the subject of ongoing consultation and review. These are the details of what constitutes “harmful content” for the purposes of the Commission’s powers, and the absence of a mechanism for members of the public to make direct complaints to the Commission. As regards what constitutes “harmful content”, the Commission proposes to regulate the publication of (a) content which constitutes a criminal offence, and (b) content which bullies harasses an individual, or encourages eating disorders or self-harm, so long as this material is likely to cause significant harm to a person’s the Parchment 21


Social Media/Defamation

Despite being in gestation for several years, the OS R Bill remains unclear as to exactly what type of harmful online content will be regulated by the Online Safety Commission, and whether or not members of the public will be able to have individual complaints investigated, as they can with the Data Protection Commission

22 the Parchment

physical or mental health. aterial that is excluded from the definition under the Bill is defamatory material, and material which breaches privacy, data protection or intellectual property laws. t is unclear why the vast amount of defamatory material posted every day to Twitter and acebook etc should be excluded from such an important piece of legislation, while the absence of “misinformation” from the definition of harmful material is also regrettable. n respect of the availability of remedies for members of the public who are victims of such material, it is important to stress that the OS R Bill is intended as a “systemic” piece of legislation. ts purpose is to regulate the platforms, and not to provide new avenues for civil litigation against them. embers of the public can make individual complaints to the Data rotection Commission in respect of a breach of their data protection rights, and the D C is obliged to investigate this complaint to some extent and provide a report. The Online Safety Commission, however, will serve no such role in respect of the public. This is clearly a policy decision, as it would be hugely expensive to staff the Commission sufficiently for it be able to deal with the volume of complaints from the public about all manner of harmful online content. Where the Online Safety Commission and the Data rotection Commission are similar, however, is in their powers. The former’s ability to impose fines on social media platforms, and even bring legal proceedings to have access to the platforms blocked in this jurisdiction, will re ect closely the powers of the Data rotection Commission. eview of the Defamation Act The Report of the Review of the Act was published in arch 2022, and deals with defamation via the internet under three broad categories The defences open to “operators of websites” The availability of injunctions against social media platforms The problem of defamatory material being posted by anonymous users. As regards “operators of websites”, the Report correctly identifies the difficulties surrounding the defence of innocent publication under s.27 of the 200 Act, available to parties which are not the “author, editor or publisher” of the defamatory statement. The lack of specific reference to internet intermediaries in this section is something that requires to be addressed. nfortunately, the Report provides little in the way of suggestions, and is itself guilty of using imprecise language with regular references to “internet service providers,” “webhosting companies”, “online platforms,”, “internet platform providers” and “operators of websites” without any explanation as to whether these are all synonymous or relate to different types of entities. t’s a deficiency which does little to instil confidence in the Report’s ability to understand the specific issues provoked by defamation via the internet. Section of the 200 Act provides for the availability of injunctions against defendants generally in defamation proceedings, and again has been found wanting in the internet age. The problem is with the word “defendant”, as it is clearly intended to refer to

the author and or publisher of the statement. When the application is brought against a social media platform, however, it appears that they will almost always have the defence of innocent publication open to them, as they are not the “author, editor of publisher” of the statement, and an injunction will therefore be denied. The Report fails to deal with this issue, and instead suggests rather simplistically that a “faster mechanism” is required to obtain injunctions. A positive suggestion by the Report relates to the orwich harmacal procedure, the mechanism by which a laintiff can obtain an order compelling a social media platform to disclose what information they possess about the identity of an anonymous user. The Order is currently available only via a plenary action in the High Court, which makes it prohibitively expensive for many litigants, and the recommendation of the Report that the procedure be extended to the Circuit Court is most welcome. What the Report fails to deal with in this regard, however, is that the information supplied by platforms often provides little evidence as to the real identity of the user, being little more than a mobile phone number or email address. While legislation in the and Australia has sought to compel platforms to have verifiable information about their users, the Report does not make any such recommendation. This is another cause for regret in its findings. A Bill recently introduced by Sinn in the Social edia latforms (Defamation Amendment) Bill 2022 proposes to shift liability to such platforms for defamatory material posted by anonymous users. While the Bill is well-meaning, it is unfortunately poorly thought-out, and appears unsure as to whether it creates a criminal offence or a civil cause of action. n circumstances where a simple reproduction of the Australian Social edia (Anti-Trolling) Bill 202 would have sufficed, it is unclear why this Bill is so poorly drafted that it appears impossible to enact in its current form.

Conclusion After years of relative inactivity, the legislature appear to be finally dealing with some of the specific challenges posed by internet use. The Online Safety and edia Regulation Bill, and the Report of the Review of the Defamation Act, are both welcome, but also far from perfect. Despite being in gestation for several years, the OS R Bill remains unclear as to exactly what type of harmful online content will be regulated by the Online Safety Commission, and whether or not members of the public will be able to have individual complaints investigated, as they can with the Data rotection Commission. The Defamation Act review, aside from the suggestion to extend the availability of orwich harmacal relief to the Circuit Court, appears even more muddled in its consideration of online harm, and provides little confidence that the revised Act will address this growing problem. Both of these draft initiatives are the subject of reviews, however, and we await to see whether some of their current frailties are ultimately addressed. P This article is based on the author’s presentation at the DSBA Commercial Law Committee seminar on Thursday th May .


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GAA’s Own Goal in Disciplinary Hearing James Meighan outlines a recent case where the GAA’s Disciplinary Committee failed to follow procedures

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he disciplinary rules of the GAA came into sharp focus recently where a committee charged with enforcing the rules was undermined to such an extent that its decisions were overturned by a second committee within the Association. There has been persistent criticism of the manner in which the disciplinary mechanism of the GAA has been conducted for a number of years. In these complaints, while the basis of the committee’s decisions was sound, the issue is clearly the failure of the relevant committee within the Association, the Central Competitions Control Committee (“CCCC”), to adhere to its rules on procedures thereby undermining the disciplinary process. The purpose of the disciplinary mechanism is twofold, 1. to ensure that all who participate in the game are judged on an even standard, and 2. the rules act as a deterrent against behaviour which would bring the GAA into disrepute. While these complaints concerned a national sporting body, the procedural errors in these complaints, and the consequences of these errors, are equally relevant to all membership organisations with rules and a disciplinary mechanism.

24 the Parchment

The outcome of these complaints have signalled the importance of adhering to the internal rules, to deal with such matters and the consequences for failing to do so, which includes the undermining of the entire disciplinary process. The GAA is a national sporting organisation which reaches into every corner of the country and has its roots in every Irish parish and beyond. As a membership organisation, the GAA adopted an Official Guide (“Rules”) designed to regulate every interaction between the organisation and its members, to include a disciplinary function to ensure adherence to the Rules. Disciplinary actions were opened against Clare hurlers, Rory Hayes and eter Duggan and Galway’s Cianan Fahy following recent alleged breaches of the Rules and the GAA’s Code of Conduct in the unster and Leinster Finals respectively. The alleged incidents were not witnessed by the referees and the matters were referred to CCCC of the GAA for disciplinary action for alleged misconduct (Games nfraction). Rule 7. sets out the disciplinary jurisdiction for the enforcement of the Rules. Rule 7.2 defines an infraction as an alleged breach of Codes, Regulations, Guidelines and Directives of the GAA and an alleged infraction engages the disciplinary jurisdiction of the Rules.


Summer 2022 dsba.ie James Meighan is a managing associate in the Dispute Resolution Team at Addleshaw Goddard

Code of Conduct Rule . mandates the GAA to adopt a Code of Conduct (“Code”) for Officers, embers, layers, arents Guardians, entors, Supporters, atch Officials, Teams and nits to define appropriate behaviour and practices. The Code sets out the basic principles that establish standards of behaviour for all who attend events or participate in the GAA. Section 5.2 of the Code provides that alleged breaches of the Code and or the Rules will be dealt with in accordance with the disciplinary procedures of the Rules.

Central Competitions Control Committee Rule . 7 establishes the CCCC which exercises a number of functions under the Rules including the power to investigate and process matters relating to the enforcement of Rules and atch Regulations arising from rovincial nter-County Senior Championship (Rule . 7 (d)). Rule 7. (a)( ) empowers the CCCC to investigate and process complaints in cases arising from competitions or games. A disciplinary action may be commenced where: . a Referee’s Report discloses an alleged nfraction, 2. the Competitions Control Committee decides that disciplinary action is appropriate arising from

Disciplinary/Regulatory Law

Competitions or Games, or . the anagement Committee decides that disciplinary action is appropriate arising otherwise than from Competitions or Games. nder Rule 7. (h), the CCCC investigated the complaints in question and under this Rule, provision is made for the interview of relevant persons and preparation of a report, where the committee has requested a copy of the referees’ report and there is insufficient information within the referees report. The CCCC’s meeting was convened remotely, as provided for under Rule .7 which provides that video and or telephone conferencing are permissible when deemed appropriate by the Committee-inCharge, in this case, the CCCC. During the course of the CCCC’s deliberations, video footage of the alleged infractions was shown to the committee however, one member was not in a position to view the footage and the footage was emailed to the member concerned. It is understood that decisions on the complaints were taken by email between the committee members, following the viewing of the video footage. Following the investigation of the CCCC, a notice of disciplinary action was served upon the

The issue is clearly the failure of the relevant committee within the Association, the CCCC, to adhere to its rules on procedures thereby undermining the disciplinary process the Parchment 25


Disciplinary/Regulatory Law

While the CHC may have been concerned about the tight turnaround required, the more procedurally sound step would have been to send the complaints back to the CCCC for reconsideration

26 the Parchment

players concerned. The notice must contain a copy of the disciplinary report if such a report has been commissioned and the proposed penalty. nder Rule 7. (n), the CCCC proposed a ban of one game on Clare’s Rory Hayes and eter Duggan and two games on Galway’s Cianan Fahy.

Central Hearings Committee Once the notice of disciplinary action has been served, the players concerned have two days in which to accept the findings of the CCCC or to request a hearing. The Rules provide that where a hearing is required, such a hearing will be conducted by the Central Hearings Committee (“CHC”). Galway rejected the proposed penalty and sought a hearing before the CHC. The CHC determines its own procedures for the hearing of complaints and provision is made for the taking of evidence. The CHC hearing considered the procedures of the CCCC investigation and dismissed all complaints on the basis of procedural concerns of the investigation conducted by the CCCC. While not relevant in the complaints under consideration in this article, there are two further appeal mechanisms set out in the Rules. The Central Appeals Committee (Rule .5) hears all appeals made at Central Level. The decisions of the Central Appeals Committee are final and binding, subject only to a case being taken to Arbitration under the Disputes Resolution Code under the Rules. The Dispute Resolution Code provides that in the event of any dispute or difference between any member or unit of the GAA with any other member or unit,

as to the legality of any decision made or procedure used by the GAA which cannot be settled by amicable means within the Rules, such dispute may be referred by either party to Arbitration (Rule 7. (a)).

Conclusion While the urgency to finalise complaints is understandable, given the fast turnaround in games in the modern GAA, this cannot be offered as a defence to failing to comply with internal rules and procedures. t appears that the CHC did not hesitate to overturn the decisions of the CCCC. However, a second option open to the CHC was to overturn the decisions of the CCCC and send the matter back to that committee to reconsider the matter and make fresh findings. While the CHC may have been concerned about the tight turnaround required, the more procedurally sound step would have been to send the complaints back to the CCCC for reconsideration. To avoid similar situations arising in the future, the GAA, and all similar membership organisations, should ensure that appropriate training is provided to all committee members on the importance of adherence to the Rules and best practice on the hearing of complaints. While the GAA is primarily concerned with sporting activities and recreational pursuits, should an aggrieved party believe that they are being prejudiced under the Rules, they may take the matter into the legal sphere which would require judges to consider not only the practices adopted by committee members but also the Rules of the GAA. Such legal actions would run counter to the very idea of the GAA. P


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Cryptocurrency Estate Planning Issues The past two years have seen spectacular growth in the adoption of cryptocurrencies. John Gill and Maeve Lochrie identify and consider some of the key estate planning issues that might emerge regarding cryptocurrencies

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his growth in the past two years in cryptocurrencies has been underpinned by institutional endorsement and payment firms, including ay al, enmo and Revolut, actively adding cryptocurrencies to their offering. Generational shifts also played a key role as younger investors ocked to cryptocurrency rather than the more traditional investments such as gold or stocks. The rise of cryptocurrencies, and the role they will come to play in client portfolios for an increasingly mainstream cohort of investors, will inevitably mean that tax and estate planning advisors will need to carefully consider how this particular asset class operates from both a legal and tax perspective.

What are Cryptocurrencies and how do you Store Them? nlike fiat currencies government issued currencies cryptocurrencies are decentralised, digital representations of value, which are underpinned by the distributed ledger technology known as blockchain. Cryptocurrencies are stored in a digital wallet. The digital wallet can be stored online, commonly referred to as a hot wallet, or stored o ine in a hardware device, commonly referred to as a cold wallet. very 28 the Parchment

wallet contains the owner’s private keys, without which an owner would not be able to access their cryptocurrency. An article published by the New York Times in January 2021 noted that “of the existing 18.5 million Bitcoin, around 20 percent currently worth around 0 billion appear to be in lost or otherwise stranded wallets, according to cryptocurrency data firm Chainalysis” (Lost Passwords Lock Millionaires Out of Their Bitcoin Fortunes, ew ork Times, anuary ).

What is the Biggest Challenge of Owning Cryptocurrency from an Estate Planning Perspective? If a cryptocurrency owner dies without having an appropriate succession plan in place in relation to the succession of their cryptocurrency including very specific and clear instructions for their executors heirs with regard to access to online exchanges, digital wallets and private keys there is an almost certain risk that valuable assets could be lost forever on the death of that individual. urther, owners of cryptocurrencies should think about trusted third parties to assist their executors heirs with accessing and dealing with their cryptocurrencies after their death. It may well be the case that the nominated executors heirs


Summer 2022 dsba.ie John Gill is a partner and Head of the Private Client Department at Matheson Maeve Lochrie is a senior associate in the Private Client Department at Matheson

have a detailed knowledge about the workings of cryptocurrencies, but unless the owner specifically knows this to be the case, they should not make the mistake of imputing their knowledge about a complex asset class to their nominated executors heirs. n addition, executors should be granted appropriate powers in testamentary documents to deal with this particular type of asset class.

What Tax Treatment Applies to Gifts and Inheritances of Cryptocurrencies? Guidance published by the rish Revenue Commissioners (“Revenue”) on the tax treatment of crypto-assets (Taxation of Crypto assets Transactions, Tax and Duty Manual, Part (Last reviewed by evenue in April ) states that there are no “special tax rules for crypto-asset transactions” and the tax treatment will depend on the activities and parties involved. The guidance indicates that gains arising on cryptocurrencies (which do not fall within a taxpayer’s trade) are chargeable to capital gains tax (“CGT”) in accordance with ordinary CGT principles. The original owner of the cryptocurrency will be subject to CGT, to the extent that it has gone up in value since the date on which it was originally acquired. The recipient of a gift of cryptocurrency will be subject

Probate/Estates

to capital acquisitions tax (“CAT”) on the market value of the cryptocurrency at the date of receipt. The recipient may be able to avail of available CAT-free thresholds to shield a CAT charge, and in the event that CAT is payable by the recipient, they might be able to get a credit for any CGT paid by the original owner in respect of the gift. A step-up in basis of the cryptocurrency should arise on the death of the cryptocurrency owner for CGT purposes. This means that their estate should not be subject to CGT, and the beneficiary should inherit the cryptocurrency at its market-value as at the deceased owner’s date of death. Again, as is the case with gifts, the beneficiary will be subject to CAT on the value of the cryptocurrency. nterestingly, in the context of remittance basis taxpayers, there is much debate at an international level as to the location of cryptocurrencies for tax purposes. H RC in the has published its view that the cryptocurrency should be considered located in the jurisdiction in which the beneficial owner is tax resident. Recent guidance published by rish Revenue states that “ t he first step in determining whether or not the remittance basis applies to crypto-assets is to note that the requirement is that the assets are situated outside the State, and not that they are not situated in reland”. This distinction is important because, where a crypto-asset the Parchment 29


Probate/Estates

There is currently no specific legislation in relation to the taxation of cryptocurrencies in reland, so cryptocurrencyrelated losses are not yet ring-fenced

exists ‘on the cloud’, it will not actually be situated anywhere and therefore cannot be viewed as ‘situated outside the State’. The guidance further states that “ w here the location of crypto-assets giving rise to a taxable gain cannot be confirmed by the taxpayer, that gain is chargeable to tax in Ireland based on residency rules”. Although not entirely clear, it appears that Revenue has adopted the same approach as H RC and will deem a cryptocurrency to be situated in reland, if its owner is rish tax resident. This means that nondomiciled owners who are resident in Ireland would not be able to avail of the remittance basis of taxation in respect of income or gains on cryptocurrencies. Although the guidance remains silent on the issue, it is likely that cryptocurrencies would be treated as falling within the CAT charge on the death of an rish resident owner however it is expected that non-domiciled individuals should not be considered resident in Ireland for CAT purposes in any given year unless they have spent the five prior consecutive tax years resident in Ireland. The branch of the Society of Trust and state ractitioners has suggested that the location of cryptocurrencies should be determined by the residency of the “holder of the private key”, and if an individual holds cryptocurrencies via an exchange or trading platform, the holder of the private key may be the exchange or trading platform. This would be more favourable from a CAT perspective and from the perspective of remittance basis taxpayers.

What Happens if you lose the Private Key to your Cryptocurrency? f you lose the private key to your cryptocurrency, you may have a “negligible value claim” and be treated, for CGT purposes, as having disposed of the cryptocurrency for nil value. This would mean that you crystallise a capital loss equal to the amount that you originally paid for the cryptocurrency which should be capable of being offset against chargeable capital gains arising on other assets. There is currently no specific legislation in relation to the taxation of cryptocurrencies in reland, so cryptocurrency-related losses are not yet ring-fenced. egligible value claims must be made to Revenue in the year of assessment that the private key was lost or considered to be irrecoverable, but in practice, Revenue generally permit a grace period of 12 months.

What Happens to your Cryptocurrency held on an Exchange if you Pass Away? Reputable cryptocurrency exchanges have processes in place to handle cases where an owner passes away having held cryptocurrency on an exchange. In that circumstance, the executor of your estate will have to provide the exchange with several supporting documents such as a copy of the Grant of robate which will be taken out once your Will has been proved, a copy of your death certificate and a copy of your Will. As well as this, the executor will also have to provide documentation such as a valid form of identification and the executor will likely also have to undergo the exchange’s A (Anti oney aundering) verification process. n order to simplify this process, it is recommended that anyone who either holds cryptocurrency on an exchange, or who regularly uses the services provided by an exchange, should write a confidential letter to their executors which discloses the member reference number of their account.

How do you Value Cryptocurrencies for Tax Purposes? This is a tricky question, as there is a high level of price volatility associated with cryptocurrencies at the best of times. The Revenue guidance referred to above suggests that “reasonable efforts” should be made “to use an appropriate valuation for the transaction in question”. However, given the various different channels through which cryptocurrencies can be acquired, the valuation of cryptocurrencies could prove to be a difficult task no matter how reasonable one’s efforts might be. As a starting point, it is suggested that cryptocurrency owners should keep accurate records of all acquisitions and disposals, which record should include the type of cryptocurrency, date of the transaction, the number of units involved, the value of the transaction in euro as at the date of the transaction, and bank statements wallet addresses.

Concluding Remarks So whether you are a nocoiner or firmly in the HOD (“hold on for dear life”) camp, one thing is for sure cryptocurrencies are likely to become a more common feature of a client’s asset profile. As advisers, we need to ensure that a client has a viable succession plan in place for their cryptocurrencies, which works from both a tax and legal perspective. P 30 the Parchment


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Facial Recognition Technology and the Gardaí Sean c lligott and Anne Bateman analyse new legislation that may give An Garda Síochána the power to use enhanced technology

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n 25 ay 2022, inister for ustice, Helen c ntee, announced a proposal that would allow Gardaí to use facial recognition technology ( RT) when investigating criminal offences. The provision would operate as an amendment to the proposed Garda S och na (Digital Recording) Bill, an act that the inister hopes to introduce shortly. So far, the General Scheme of the Digital Recording Bill aims to provide a legal basis for law enforcement use of body cameras, along with other recording devices such as mobile phones. The proposal would also expand the use of Closed-Circuit Television (CCT ) footage and automatic plate recognition technology. Emphasising the role of technology in enhancing law enforcement practices, inister c ntee noted that employing FRT could revolutionise how Gardaí manage child exploitation, missing persons, and murder cases. The technology would also help exonerate innocent parties by revealing their whereabouts at the time of the crime. Once enacted, the Bill would allow Garda to input an image of

32 the Parchment

a perpetrator into a system that would then provide instant access to images of the suspect, or those that resemble the suspect, taken in public places. This process would enhance the speed and facility with which Gardaí could locate and identify suspects. The Scheme has already been the subject of significant criticism from data protection and human rights perspectives, notwithstanding the fact that it will include a number of safeguards. For example, rigorous human rights and data protection impact assessments must be completed before the legislation can be finalised and the Bill would need to comply with the General Data Protection Regulation & Data rotection Act (GD R). While the current Scheme does not include the addition of FRT, it is likely that its use would be limited to cases where there is a risk to national security or an immediate threat to life. However, what about the proposed EU AI Act (A A) and its possible impact on the Scheme ou will recall that the AIA will create a uniform legal framework for artificial intelligence among ember States. The AIA seeks to encourage innovation while providing safeguards against potential infringements


Summer 2022 dsba.ie Sean McElligott is a partner and Head of the Technology Group at Philip Lee. Anne Bateman is a partner at Philip Lee and specialises in Intellectual Property, Data Protection and Privacy Law

of fundamental rights. While biometric identification systems are considered “high-risk” under the Act, ember States could authorise law enforcement use of FRT if they adhere to certain stipulations. Under the AIA, law enforcement can employ FRT if its use is “strictly necessary” for finding missing persons, preventing threats to life, physical safety, thwarting terrorist attacks, or identifying or prosecuting those suspected of certain offences The A A also requires law enforcement officials to weigh the consequences of each use of FRT against the probability its use would prevent future harm. Lastly, individual use of the technology would require the consent of a judiciary or supervisory authority unless circumstances necessitated urgency. As such, national legislation would have to provide a legal process through which law enforcement officials could receive consent for each individual use of this technology. If European Parliament passes the A A, then the Digital Recording Bill would be required to comply with this framework. However, the whole issue remains in a state of ux and the current draft of the A A will change the current text has amassed thousands of potential

Privacy/Data Protection

amendments from each political group within the uropean arliament. embers of the uropean Parliament are expected to debate amendments to the AIA in the coming months, and criticism from other governing bodies could in uence these changes. Responding to the draft of the AIA, the D B ( uropean Data rotection Board) and D S ( uropean Data rotection Supervisor) called for a total ban on FRT in publicly accessible spaces “in any context”. The agencies also argued that data protection authorities should be given a more prominent role in enforcing the provisions since data protection and artificial intelligence are so closely intertwined. If amendments to the AIA take on board these concerns, then the EU AI Act could enact stricter prohibitions on the use of FRT and how it is supervised. The extent to which Gardaí will be able to use FRT is unclear but will likely be limited to serious offences. However, given the A A, the circumstances and facility with which this technology can be used under the Digital Recording Bill may be subject to stricter limitations. P

National legislation would have to provide a legal process through which law enforcement officials could receive consent for each individual use of this technology the Parchment 33


Lost Wills – Recent Developments Bonnie Hickey BL assesses the evidence required to admit a copy will to proof

The Presumption of Revocation The loss of an original will can cause great stress and anguish amongst family members and solicitors, particularly given the legal principle that it is presumed to have been destroyed (and revoked) by the testator unless the evidence proves otherwise. This legal principle, known as the presumption of revocation, is certainly not a new development. It dates back to the 1860s and was endorsed by the Irish Supreme Court in the 1970s. However, the nature of the evidence required to rebut the presumption has always been hard to pinpoint given that each application is decided on its facts and the lack of jurisprudence from the courts. Unusually, the High Court has issued three written decisions in these applications in the past 18 months. The decisions helpfully provide practitioners with guidance on what is required to get these applications over the line and admit a copy will to proof.

Proofs Before considering the recent decisions from the High Court, it is helpful to first refresh the mind on what proofs are required when bringing an application to admit a copy will to proof. The application is brought by way of motion and affidavit to the High Court noncontentious probate list. Below is a broad overview of the proofs that must be set out in the Affidavit(s) grounding the application: Due xecution generally one of the attesting witnesses will confirm the will was properly executed. If the witnesses cannot be found or they have since passed away, it is not fatal to the application and you 34 the Parchment

can rely on the presumption of omnia praesumuntur rite esse acta (i.e., everything that ought to have been done was done). • Evidence that the original will existed at the date of death or evidence that it was destroyed or lost in error • That the copy will is an authentic copy vidence of efforts made to locate the original will including advertisements if required Other general proofs the death certificate, the copy will, the background facts and details of the assets in the estate. Anyone who would be entitled to inherit on intestacy must be put on notice of the application, unless they have furnished prior written consent. If they are consenting, the consent letter(s) should be exhibited. The costs of the application will be at the discretion of the Judge. The costs orders in these applications vary and depend on the circumstances of the application and the judge hearing it. As a general rule of thumb, the costs will be awarded from the Estate unless it is clear that the solicitor safeguarding the will is responsible for losing it.

Re Healy Deceased [2022] IEHC 49 This is the most recent decision given in these applications and probably the one that provides practitioners with the most guidance for future applications. The deceased made his will without the assistance of a solicitor in a Dominican Order holiday home located next to his house. He did so with the assistance of a


Summer 2022 dsba.ie Bonnie Hickey BL is a practising barrister with a speciality in probate matters

priest who was staying there. After he passed away, the original will could not be found. The deceased’s nephew, who was also the main beneficiary under the will, had a copy of the will only. He claimed that before his uncle passed away, he showed him an envelope and told him it contained his will. His nephew believed that his uncle had accidentally left the original will on the photocopier in the Dominican Order holiday home and had taken and kept the copy will in the mistaken belief that it was the original will. Butler J held that there was a lack of evidence to enable the Court to conclude either that the original was still in existence after the deceased passed away, or, that it had been inadvertently lost or destroyed. Her reasons were that there was no evidence of where the original will had been photocopied, no evidence that the Order had retained the original will and no evidence to indicate what was in the envelope shown to the Deceased’s nephew or where he had found the copy will he was relying upon. The decision of Butler J is very detailed and provides practitioners with the following principles for future applications: (i) The nature of the evidence Butler J stated that the presumption that the will was revoked is an evidential one i.e. is based on the facts. The Court must consider the evidence, or lack of evidence, in deciding whether the presumption of revocation should apply. The evidence can be circumstantial and usually is in these applications and therefore inferences can be drawn from who is likely to have had custody of the will, the content of the will

Wills/Probate

and even the character of the deceased. In particular, she found that: • There must be some evidence to indicate that the original will was kept by someone other than the testator • The fact that a copy will was made does not prove the testator did not retain the original • The fact that the testator generally didn’t throw out personal documents can support a presumption that the will was revoked • The fact that intestacy would result in an entirely different outcome (i.e. would result in the beneficiary under the will receiving nothing) is not of itself sufficient to rebut the presumption. (ii) The practices of solicitors for the safekeeping of wills While this case did not concern the safekeeping of a will by a solicitor, Butler J outlined what records a solicitor ‘normally’ keeps when making a will for a client. These comments could be relied upon in future applications to admit copy wills to proof where the will was made in a solicitor’s office. Butler J stated that normally a solicitor keeps a record of (i) the client’s instructions (ii) copies of various drafts of the will (iii) the execution of the will, and, (iv) whether the original is being kept in the solicitor’s office or being returned to the client. She also stated that the wills’ register will record exactly what was done with the original will and where the will was originally retained by the solicitor’s office and subsequently provided to the client at their request, the wills’ register will record this.

The Court must consider the evidence, or lack of evidence, in deciding whether the presumption of revocation should apply

the Parchment 35


Wills/Probate

The fact that a testator does not make another will, despite being aware that it was stolen (or destroyed in error), is not evidence of an intention to revoke their will

It may provide solicitors with some relief that she acknowledged that records may not always have been perfectly kept and that where they are imperfect or have been lost through the passage of time, it can sometimes be resolved by a solicitor swearing an affidavit as to the general practice in the firm when the will was executed. Finally, it is important to note that this application is currently being appealed and therefore practitioners should keep an eye out for any future Judgment from the Court of Appeal.

Re Eastwood Deceased [2021] IEHC 387 This case did involve the loss of a will that had been made in a solicitor’s office. After the deceased passed away, a dispute arose about whether or not the original will had been previously posted to her by her solicitor, and more particularly, whether she had received it by post and destroyed it. The application was brought by a son of the deceased who was also the main beneficiary under her will. He claimed that he opened her post every morning and the only correspondence from her solicitor that he saw was a compliment slip attached to a copy of her will. His siblings, who were entitled to a greater share of the estate on intestacy, disputed this and stated that their mother frequently opened her post herself and it was therefore likely she had received and destroyed the original will, given that it could not be found. Allen decided that the con icting facts could not be decided on affidavit evidence and he transferred the matter to plenary hearing. In doing so he noted that the lack of evidence on one side made it difficult for him to decide what had occurred. At the time of writing this article, the plenary action has yet to be heard. In the event that it proceeds to a full hearing the Judgment is one which will likely be of interest to solicitors in terms of their obligations when making, retaining and returning original wills.

Re Delahunty deceased [2021] IEHC 657 The facts of this case are less common in that they involved the loss of an original will as a result of a will 36 the Parchment

safe being stolen from a solicitors’ office. However, there are three points from the decision that could be applied to a variety of applications to admit a copy will to proof: (i) f the attesting witnesses are dead cannot be found, the Court may accept an Affidavit from the solicitor as to the practices in place when exeucting wills as evidence of due execution (ii) An unsigned carbon copy will can suffice as a true copy. Affidavit evidence from the solicitor that there was no photocopier in the office at that time is sufficient. (iii) The fact that a testator does not make another will, despite being aware that it was stolen (or destroyed in error), is not evidence of an intention to revoke their will.

Conclusion The recent case law provides guidance in bringing these applications in a variety of situations, i.e. where a will has been stolen, where a will made in a solicitor’s office has been lost and where a will made without the assistance of a solicitor has been lost. While these applications are very fact based, the case law does provide assistance in determining the nature of the evidence required to rebut the presumption of revocation and admit the copy will to proof. The overriding point to take from this article is that as much detail as possible is required on Affidavit when bringing these applications. Certainly this seems to be increasingly the case, both from the decisions referred to and from hearing the applications on a Monday morning. Detailed Affidavits are important not only to get your application over the line but also to avoid a situation where a lack of evidence could result in the Judge transferring the matter to plenary hearing, a far lengthier and more expensive avenue. The final point to note is that solicitors should ensure their records are well kept when making wills, including their will store records. The benefits of keeping clear and consistent records will be reaped in the event that an original will goes missing and one of these applications is required. P


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Lack of Detail May Prove Costly There has been much commentary about a 20 Supreme Court decision in the area of debt collection, particularly debt claimed by lenders. Jason Harte looks at the decision of Bank of Ireland ortgage Bank v O’ alley 20 SC (the O’ alley decision)

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he Supreme Court overturned a decision of the High Court granting summary judgment against Mr. O’Malley. It did so on the basis that the Bank had failed to adequately itemise and define its claim. n particular, the Court held that the summary summons and supporting affidavit evidence from the Bank should provide “at least some straightforward account of how the amount said to be due was calculated and whether it includes surcharges and/or penalties as well as interest”. The O’Malley decision highlights the importance for lenders of thoroughly particularising any amounts claimed, and the manner of their computation, both in the pleadings and evidence put before the court in summary proceedings. The decision also emphasises the need for the particulars to be clearly and accurately referenced in any correspondence issued prior to commencing proceedings. This point around correspondence is key in light of the Supreme Court’s comment that the “more detail the borrower has been given in advance, the more it may be possible to justify a relatively shorthand way of describing how the amount due is calculated” in the pleadings.

Has it Been a Game-Changer? In a subsequent Court of Appeal case that followed the O’ alley decision, s. ustice Whelan described that case as representing “a recalibration in judicial thinking” ( BC Bank reland plc v Corrigan Corrigan 202 CA ) as to what is required of a creditor in summary proceedings. She went on to state that the O’Malley decision demanded “a higher standard than had hitherto been acknowledged to be the case” if banks or other creditors were to get summary judgment for loans or similar debts. 38 the Parchment

What Practical Effects has the Decision had? There have been numerous cases in both the High Court and Court of Appeal since the O’Malley decision was handed down. Many of the judgments in the immediate wake of that decision found the particulars of the summary summons being used by lenders especially the quantification of interest on any loan, in the body of those summonses to be inadequately particularised. This had resulted in many applications by those creditors to amend their summary summonses and affidavits of debt in order to comply with the requirements laid down in the O’Malley decision. ndeed, a recent High Court case Cabot Financial (Ireland) Limited v Michael Kearney noted that these amendment applications “are a commonplace at present”.

Cases Sent to Full Trial ollowing the O’ alley decision, borrowers had challenged lenders’ pleadings and paperwork in several cases. n some of those cases, non-compliance with the O’Malley decision has been instrumental in the courts’ decisions to rule that the case must be then heard by way of a full trial as opposed to being heard with affidavit evidence only. ndeed, in arch 2022, in Allied Irish Banks PLC and Everyday Finance DAC v Thomas Doran and Thomas Scanlon ( 2022 CA 7 ), the Court of Appeal was particularly critical of the fact that “there was no calculation of interest within the relevant summary summons or in any other document furnished to Mr. Doran.” The judge went on to find that the order of summary judgment made by the High Court in uly 20 should be set aside, with the case to be remitted back to the High Court, with the lender under orders to rectify its position.


Summer 2022 dsba.ie Jason Harte is a partner and Head of the Debt Recovery Team at Mason Hayes & Curran

Is it all Bad News for Lenders? On the other hand, there have been cases where, despite pleas from borrowers that a plaintiff creditor’s summons does not comply with the O’ alley decision (and summary judgments should be set aside claims sent to full trial), that courts have not ruled in their favour. This is especially the case if sufficient detail is provided to the borrower in advance of the proceedings being commenced pertaining to the loan facility that includes the bank statements showing the calculation of interest and other charges.

And What about the Costs of Fixing Inadequate Descriptions? Undoubtedly a feature of most decisions post the O’Malley decision has been that the borrower is entitled to an award of costs for any relevant application brought by the lender to amend those proceedings. n addition, where borrowers have successfully overturned a summary judgment made against them, costs of doing so are invariably also awarded in their favour. Borrowers may even also be awarded the costs of the entire summary procedure if a court subsequently finds that the lender should have commenced proceedings by way of plenary summons leading to a full trial (Cabot Financial (Ireland) Limited v Michael Kearney 2022 HC 2 7). This could be despite the fact that the lender may ultimately win at the trial.

Advice to Lenders Commencing Summary Judgment Proceedings t is worth quoting from the recent earney judgment of Mr. Justice David Holland from the

Debt Litigation

above-referenced earney case - “Typically in practice, O’Malley compliance is met by the plaintiff ’s having provided to the defendant, prior to issue of the summary summons and then referring therein to, a statement of the account from drawdown of the loan, including detail of any interest rate changes and interest and other charges imposed from time to time. These statements are then exhibited to the affidavit grounding the application for summary judgment.” Accordingly, the obtaining and maintenance of bank statements, from the inception of a loan facility, all the way through to the date of demand a date immediately prior to the lawsuit, is key for both lenders and those entities that acquire loan portfolios, if they are to use the summary judgment procedure. These should then be sent to the borrower his legal representatives, prior to the commencement of a claim. n legal proceedings, this is a much less cumbersome manner of adequately particularising a debt, such as a mortgage loan debt, than seeking to incorporate all of the data relating to the loan, including variable interest rates, that may change on given rest dates, etc., into the body of a summary summons itself.

Final Comment enders, loan portfolio purchasers and their lawyers should carefully consider whether they have the requisite detail to prove a bank debt before they issue summary judgment proceedings against a given borrower. The consequences of not doing this have been significantly raised over the past few years. The days of suing first and considering proofs later (if they ever existed) are truly at an end. P

enders, loan portfolio purchasers and their lawyers should carefully consider whether they have the requisite detail to prove a bank debt before they issue summary judgment proceedings against a given borrower

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The Remote Workplace – Health and Safety Issues Sinéad Byrne examines how a myriad of Health and Safety Legislation may apply to the remote working environment

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s a starting point, the provisions of the Safety, Health and Welfare at Work Act 2005 (the 2005 Act) and the Safety, Health and Welfare at Work (General Application) Regulations 2007 to 2021 should be looked at. However, as they were not drafted with remote working in mind but rather at a time when attendance at a traditional, physical workplace was the norm, the question arises as to whether the current framework of health and safety legislation in Ireland adequately supports remote and hybrid working.

The Risk Assessment Health and safety legislation requires all employers to ensure, as far as reasonably practicable, that their employees are working in a safe environment. The employer is responsible for the safety of the ‘place of work’, which is defined in the 2005 Act as any place where “work is carried on whether occasionally or otherwise”. As part of this duty, a risk assessment must be carried out of the employee’s workspace, including any remote workstations. To assist employers during the pandemic, the Health and Safety Authority (HSA) issued Guidance on Working from Home for Employers and Employees with an appended Homeworking Risk Assessment Checklist which provided that a risk assessment should be carried out of the workstation/display screen by a competent person, where necessary. The HSA defines a ‘competent person’ as someone with “sufficient training, experience and knowledge who can carry out the Display Screen Equipment risk assessment of an employee’s workstation”. The assessment can be 40 the Parchment

carried out online, with the use of a camera device so that the assessor can get a live view of the workspace. The employer should then implement any necessary safety measures in response to hazards and risks that have been identified from the risk assessment. The workstation includes the work desk, the work chair, the screen and other IT accessories provided to the employee in the course of their employment. To adequately assess the work environment, should the entire room that the employee works in be inspected and perhaps also the hallways immediately outside the room? Clear guidance as to what precisely should be assessed is needed as employers face new issues such as balancing the requirement to carry out a risk assessment with an employee’s right to privacy in their home.

Remote ‘Workplace Injuries’ and the Remote Commute A workstation that does not comply with standards could result in injuries and loss of earnings, which an employer may be ultimately liable for. A recent case in Germany saw an employee successfully claim on the workplace accident insurance for a slip, which occurred at home. Interestingly, this was considered a workplace accident and it was deemed that the employee was ‘commuting’ when moving around the home. It was decided by the German court that the policy of insurance would cover insured activities carried out in locations other than the company premises. In Ireland, at present, it is unclear where the responsibility lies for insuring an employee’s home


Summer 2022 dsba.ie Sinéad Byrne is an associate solicitor at LK Shields with a speciality in employment and commercial litigation

Employment Law

when it is also a place of work. The 2005 Act places an obligation on employees to report to employers on anything that may put their health and safety at work at risk. What this means in practical terms in the changed world of home and remote working is not clear. Does the potential hazard have to relate to a work activity? Employers will then also have to consider how investigations should be carried out at home, as opposed to at the office, in response to any report submitted.

Provision of Desks and Chairs The HSA guidance states that employers need to identify and agree with employees on the resources and equipment which may be needed by the employee, to effectively work from home. However, clarity is needed on this. If a desk or chair allowance is provided, an item that an employee chooses to purchase may not comply with standards for office furniture. In respect of the provision of resources, the costs associated with remote working are not currently legislated for. It is prudent to provide adequate resources and equipment from a risk and safety perspective and this may help to reduce the employer’s exposure to potential claims.

Penalties The HSA has authority under the 2005 Act to take enforcement action and to issue fines for failure to comply with the legislation. A contravention of health and safety legislation may be tried summarily in the District Court, where the maximum penalty is €5,000 per charge and/or up to 12 months’ imprisonment, or on indictment in the Circuit Court where the maximum penalty is €3,000,000 and/or imprisonment for a term not exceeding two years.

WHAT CHANGES ARE COMING DOWN THE TRACK TO ADDRESS THESE ISSUES? Draft Scheme on the Right to Request Remote Working Bill 2022 The Draft Scheme on the Right to Request Remote Working Bill 2022 (the Draft Scheme) includes certain safety provisions within the draft heads. It is envisioned that safety checks may be required to be carried out which will help frame a request to remote work decision. Once the legislation has been finalised and enacted, there will be an obligation on employers to have a remote working policy.

What does the Draft Scheme say about safety?

• The self-assessment: In order to support their request to work remotely, an employee would be expected to carry out a “self-assessment” of the proposed remote working location including an assessment of the “ergonomic suitability of the proposed workspace and any equipment and furniture requirements”. How an employee is expected to assess this is currently unclear from the Draft Scheme. • Engaging experts: The Draft Scheme recognises that there may be a need on occasion to engage health and safety consultants, who presumably may need to assess the remote working location, but

does not specify when it is envisaged that this may be needed. Moreover, how the assessor’s duty is to take place alongside the self-assessment carried out by the employee is unclear. • Declining a request: One of the identified business grounds identified in the Draft Scheme for rejecting a request for remote working is for “Concerns for the suitability of the proposed workspace on health and safety grounds”. Again, the Draft Scheme does not provide detail around what might constitute an unsuitable workplace which is unhelpful, but it does appear that the safety checks required to be carried out as part of the risk assessment under the 2005 Act may impact the remote working request. • The penalties: The Draft Scheme envisages no penalties in respect of breaches of health and safety, but employees may have a remedy under the 2005 Act.

Conclusion As remote and hybrid working has become the reality for more and more businesses, the practical issues and the safety concerns that arise when considering a remote working request become more apparent. As part of the Draft Scheme on remote working, a code of practice is due to be published by the WRC later this year which will hopefully provide guidance on remote working policies and how to adequately carry out health and safety checks to allow the right to request remote working become a reality for many. Whilst the HSA guidance provides some assistance, the exact scope of the employer’s duty remains unclear, and it remains to be seen whether the insurance and liability issues will be addressed within the proposed legislation. P

It is envisioned that safety checks may be required to be carried out which will help frame a request to remote work decision

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Data Access Requests – More of the Same? Data access requests are a well-known and often onerous aspect of GD R. With the uropean Data rotection Board recently publishing draft new guidelines on Data Subject Access Rights, and the Health Access odification Regulations also being updated, Sean O’Donnell and ohn Anthony Devlin ask has anything changed for controllers

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022 has already seen important developments in the right of access the uropean Data rotection Board (the D B) have published Guidelines 0 2022 on data subject rights - Right of access (the Draft D B Guidelines) and the Data rotection Act 20 (Access odification) (Health) Regulations 2022 (the 2022 Regulations) have been signed into law. This article highlights the key takeaways for controllers.

When are Data Controllers Obliged to Respond to Requests for Information? The Draft D B Guidelines confirms that controllers have the obligation to respond to data subjects request for information without data subjects’ giving data controllers a reason for submitting an access request. n other words, controllers should not assess “why” the data subject is requesting access, but only “what” is being sought. either is it up to the controller to analyse whether the request will actually help the data subject to verify the lawfulness of the relevant processing or exercise other rights. The D B considers it good practice for controllers to confirm receipt of requests in writing and confirming that the one month period runs from day to day . 42 the Parchment

What are the Three Components of the Right of Access? The EDPB explains the three components as follows: . Confirmation as to whether data about the person is processed 2. Access to the data, which does not depend on the type or source of the data . Access to information about the processing, such as purpose, categories of data and recipients, duration of the processing, data subjects’ rights and appropriate safeguards in case of third country transfers.

What Personal Data can be Requested? Aside from basic personal data like name, address or phone number, a broad variety of data may fall within this definition like medical findings, history of purchases, creditworthiness indicators, activity logs or search activities. seudonymised data is still personal data as opposed to anonymised data. ersonal data in the context of right of access should not be interpreted overly restrictively and may include data that could concern other persons too, for example communication history involving incoming and outgoing messages.


Summer 2022 dsba.ie Sean O’Donnell is a partner in the Privacy, Regulation and Litigation Team at ByrneWallace John Anthony Devlin is an associate in the Privacy and Healthgroup Team at ByrneWallace

Data Protection

The guidance stipulates that the request must be fulfilled as soon as possible and in any event within one month of receipt of the request. This can be extended by two further months where necessary, taking into account the complexity and number of the requests. The data subject has to be informed about the reason for the delay.

What About Transparency Requirements? Controllers must ensure that information is provided in a concise, transparent, intelligible and easily accessible form, using clear and plain language. Where the amount of data is very vast and it would be difficult for the data subject to comprehend the information if given in bulk especially in the online context the Draft D B Guidelines recommend making use of a layered approach. Controllers should consider what information the data subject would find most relevant when deciding what information to give, considering the different layers. n line with the fairness principle, the first layer should contain information on the processing which has the most impact on the data subject. Where a controller processes a large quantity of information they may request the data subject to specify the information or processing to which the request relates. This must not aim to limit the reply to the access request nor to hide any information.

When can Data Controllers Refuse to Give Access to Requested Data? Where the controller is not able to identify data that refers to the data subject, they must inform the data subject and they may refuse to give access unless the data subject provides additional information to enable identification. The controller is not obliged to acquire additional information to identify the data subject to comply with the request. However, controllers should not refuse to take that information. Any request for additional information must be proportionate to the type of data processed and factor in the damage that could occur through excessive data collection. The right to obtain data shall not adversely affect the rights and freedoms of others, whatever the means of access. The controller must be able to demonstrate the adverse effect on rights or freedoms. Restrictions on the right of access may also exist in ember States’ national law, and the 2022 Regulations are an important example of those restrictions. As with the Regulations (now revoked), the new 2022 Regulations limit the right of access under Article 5 GD R where the information would be likely to cause serious harm to the physical or mental health of the data subject.

So What has Changed? uch of what is set out above will be familiar to controllers. onetheless, there has to date been limited guidance on what the aim, scope and requirements of data access requests mean in practice. Controllers may find these obligations onerous

for instance where the Draft D B Guidelines recommend controllers to give the broadest possible effect to the right of access, and to give “complete access” to the requested information, unless explicitly limited by the requesting data subject. Controllers must also have regard to the implications of the 2022 Regulations, in particular nder the Regulations, a controller was prohibited from supplying the information in question. nder the 2022 Regulations, the controller “may decide” not to provide the information. n practice, the distinction will require careful consideration. nder the Regulations, a controller who was not a health professional was prohibited from supplying health data without consulting a health practitioner. nder the 2022 Regulations, a controller “may” consult with a health practitioner. The principle of data minimisation and the application of pseudonymisation also now explicitly apply when consulting with that health practitioner. The health practitioner must provide written advice when recommending withholding data, and this will also be subject to GD R (and possible access requests). nder the 2022 Regulations, access may be offered to a health practitioner on behalf of the data subject, similar to the mechanism under Section 7 of the reedom of nformation Act 20 .

nder the Regulations, a controller was prohibited from supplying the information in question. nder the 2022 Regulations, the controller “may decide” not to provide the information

The Draft D B Guidelines have been published for consultation and are subject to change, however controllers should begin to prepare now for their eventual adoption. Although not legally binding, the guidance is based on current case law and is indicative of the D B’s position and understanding of GD R. P the Parchment 43


Inordinate and Inexcusable Delay The High Court recently examined the grounds under which a personal injuries claim can be dismissed for inordinate and inexcusable delay. David Smith explores the case of Rooney v Health Service Executive IE C which were medical negligence proceedings struck out following a six-year delay by the plaintiff in particularising his claim and a failure to progress the proceedings

Background The plaintiff underwent an angiogram and angioplasty surgery in ay 20 at the ater isericordiae niversity Hospital. The plaintiff alleged that following the treatment, the remnant of the angioplasty balloon and catheter remained in his leg, and he subsequently underwent two further surgeries which resulted in both below and above knee amputations.

Procedural Position The plaintiff issued proceedings by way of ersonal njuries Summons on 0 arch 20 and the Health Service xecutive (“HS ”) was named as the sole defendant in the proceedings. The summons was served on the HS on 02 ebruary 20 7. However, solicitors for the ater Hospital objected to this and wrote to the plaintiff ’s solicitor agging that the HS was not the correct defendant in these proceedings as it was not responsible for the operation of the hospital. Solicitors for the hospital came on record for the HS and wrote to the plaintiff ’s solicitors in April 20 7 seeking full and detailed particulars of the plaintiff ’s claim in circumstances where the summons 44 the Parchment

was issued without the benefit of an independent expert report on a protective basis and no details of the negligence had been pleaded. urther, they wrote to the plaintiff ’s solicitors on a number of occasions, however, no substantive reply was ever received. The defendant subsequently issued a motion in ebruary 2020 seeking to dismiss the plaintiff ’s claim on the grounds that it was an abuse of process and there was inordinate and inexcusable delay on the part of the plaintiff. This motion was then adjourned at the request of the plaintiff ’s solicitor and thereafter again due to public health measures in place at the time. The motion was ultimately struck out for non-attendance in September 2020. Solicitors for the defendant issued a second motion on similar terms in arch 202 .

High Court Decision r ustice Simons applied the test set out in Primor plc v Stokes Kennedy Crowley ( ) to the facts of this case which is as follows . Whether the party’s delay can be considered inordinate, having regard to the nature of proceedings and all of the relevant circumstances. 2. f the delay can be considered inordinate, whether this delay can be excused.


Summer 2022 dsba.ie David Smith is a solicitor in the Healthcare Team at Hayes Solicitors

.

f the above two steps apply, then the court must consider whether the balance of justice would favour the dismissal of proceedings. n reaching a decision, the court must have regard to all of the relevant circumstances such as delay or acquiescence on the part of the defendant.

n applying the Primor test to the facts of this case, r ustice Simons found that there had been inordinate and inexcusable delay on the part of the plaintiff for the following reasons . There was a failure to provide full and detailed particulars of the claim as required by the Civil iability and Courts Act 200 . 2. A continued failure to obtain an independent expert report to support the plaintiff ’s allegations of negligence. . There was inordinate and inexcusable delay on the part of the plaintiff and his solicitors in prosecuting the proceedings, and . o reasonable cause of action had been disclosed against the HS . n reaching his decision, r ustice Simons held that there had been inordinate delay as the alleged negligence occurred in 20 and proceedings issued

Litigation

in 20 and there had been a significant delay in progressing the claim and lengthy periods of inactivity on the part of the plaintiff ’s solicitor. r ustice Simons found that it was in the interests of justice to dismiss this case for a failure to comply with the statutory obligation under the Civil iability and Courts Act 200 to particularise personal injuries claims and that the ongoing delay was unreasonable and the continued maintenance of proceedings without such a report had now become an abuse of process. This is an important decision which provides legal practitioners with further insight into the courts’ application of the criteria for dismissing legal proceedings for want of prosecution. t should be remembered, however, that the onus remains on the defendant in medical negligence claims to satisfy the third limb of the Primor test and establish that on the balance of probabilities there is real and substantial risk of an unfair trial or unjust result if proceedings continue where there has been delay. t is clear from recent decisions in this area that they are decided very much on a case-by-case basis and whether or not a claim will be struck out on the grounds of inordinate and inexcusable delay depends on the facts of each particular case. P

The onus remains on the defendant in medical negligence claims to satisfy the third limb of the Primor test

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Probate Feedback and Tips oe Hughes from the DSBA robate and Taxation Committee gets feedback from the robate Office on some common probate issues including establishing Title to apply for Grants of Representation

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robate practitioners will be keenly aware of the lengthy processing times for applications of Grants of Representation. The robate Office has recently confirmed to the DSBA robate and Taxation Committee (“the Committee”) that the processing time for applications for Grants of Representation is currently running between 0 to 2 weeks.

Establishing Title ueries can arise following submission of application papers to the robate Office, which causes delays in processing applications. n this respect, the robate Officer has identified that the main issue arising with applications is in relation to the Oath of xecutor Administrator and the applicant’s title to extract the Grant. As practitioners are aware, the Oath must establish the applicant’s capacity or entitlement to extract the Grant of Representation being applied for. The robate Officer has advised that issues with the applicant’s title as set out in the Oath account for the rejection of between 0- 5 of all applications. This can be because the Oath has not properly set out the title the wrong title has been set out in the Oath or the applicant has no title. 46 the Parchment

Of the remaining 5- 0 of applications, the robate Officer has confirmed to the Committee that approximately half of those are queried by the robate Office due to issues such as the Oath not being properly completed the Oath and the Administration Bond not being sworn or witnessed before the same solicitor commissioner for oaths and other queries arising with the Oath.

Rejected! t is the practice of the robate Office that if the applicant has not established title in the Oath, that the robate Office will not proceed to assess the balance of the application papers. The application papers are then returned in full to the lodging solicitor and the application is treated as a new application when resubmitted. The application when resubmitted will not receive any priority and is subject to the full waiting times that apply to any new case. This is obviously frustrating for practitioners and their clients when applications are rejected and they are then subjected to further lengthy processing times on resubmission. The Committee is also aware of applications being rejected by the robate Office as a result of ordinary words not being afforded their ordinary meaning. As practitioners are aware, in setting out the applicant’s


Summer 2022 dsba.ie Zoe Hughes is a solicitor at St. John Solicitors. She is the current Chair of the DSBA Probate and Taxation Committee. She practices in the areas of vulnerable adults, wardship, wills, trusts and estates

title, it is necessary to “clear off ” all other potential persons who might otherwise have had title to extract a Grant in priority to the client-applicant. n one recent case, an application was rejected by the robate Office as the title confirmed that the deceased died without any “sibling” surviving them. The position of the robate Office was that the Oath needed to specifically clear off “brother and sister” rather than referring to “sibling”. The application was rejected and returned to the lodging solicitor on that basis.

Title – Resources for Practitioners f a Deceased’s Will appoints an xecutor(s), then that xecutor(s) is the person entitled to extract a Grant of robate. However, the title still needs to deal with scenarios where not all named executors are applying for a Grant. Order 7 of the Rules of the Superior Courts sets out the order of priority of persons entitled to extract Grants of Administration. Rule 5( ) sets out the priority of persons entitled to extract a Grant of Administration ntestate. Rule 5( ) deals with the priority of persons entitled to extract a Grant of Administration with Will Annexed, that is, where the deceased had a Will but the Will did not appoint an xecutor or did appoint an xecutor who has been “cleared off ” by death, renunciation, or otherwise.

There are a number of helpful resources available to assist practitioners in translating the above Rules into titles for applicants, including . The aw Society manual, Wills, Probates and Estates (the 7th edition of which was published in arch 2022) contains sample titles for each type of Grant being applied for. n particular, chapters 7, , and 0 deal with Grants of robate, Administration with Will Annexed, Administration ntestate and De Bonis on respectively. ach of these chapters contains invaluable guidance and sample titles that can be utilised depending on the circumstances of the particular client-applicant who is entitled to extract the Grant. 2. The robate Office also has helpful checklists for robate applications and sample titles for each type of Grant being applied for. These are available at https www.courts.ie application-grantsrepresentation ractitioners are encouraged to draw on the above resources in preparing applications for robate and, in particular, in establishing the title of their clientapplicant in the Oath in order to extract the Grant. ndeed, as the above example shows, it is important to adhere slavishly to the precedent titles set out in these resources to help ensure applications are not rejected by the robate Office. P

Probate

The robate Officer has advised that issues with the applicant’s title as set out in the Oath account for the rejection of between 0- 5 of all applications

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Solicitors Accounts Regulations 2022 The aw Society has drafted and will implement later this year, updated Solicitors Accounts Regulations (‘SARs’). iall Cawley and Susan Martin assess the position and ask if it is time for change?

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he last major change to the accounts regulations took place in 200 the 20 account regulations were largely a consolidation of a number of different accounts and statutory instruments. There is no question but that the SARs definitely need a bit of a refresh. When we consider the developments in technology and banking over the past 2 years and the changed regulatory landscape, the current SARs are looking a bit dated. The DSBA is pro-regulation. Anything which makes client money and the practices of solicitors safer can only be positive. That said, we do think that it is important not to lose sight of the ultimate goal of the SARs to protect client money, the Compensation Fund and the individual solicitor. The regulation landscape has changed significantly over the past five years, the effect of which has been to increase the compliance burden when undertaking any work. Careful consideration must be given to the imposition of ever more regulations there needs to be a balance between keeping client money safe and regulation becoming so onerous that it is a barrier to entry.

48 the Parchment

When considering the importance of the Solicitors Accounts Regulations it is worth bearing in mind that the number of solicitors who actually contravene the regulations by misappropriating client funds is very low. Most years there are two or three solicitors who face strike-off out of a roll of nearly 20,000 solicitors. The current SARs are therefore clearly working at keeping to a minimum any wrongdoing and providing a deterrent as well as guidance for practitioners. The proposed SARs will bring up to date much of the dated terminology and re ect the changes in practice and banking which have taken place over the past 20 years. There are some innovations contained within the new SARs which are very much welcomed by the DSBA. We are concerned, however, with some of the proposed changes in terms of the additional compliance burden where the reason for the change is not altogether clear or such change would not make client money any safer. n other words, we are concerned for the potential of an inadvertent technical breach of SARs which would put the solicitor into noncompliance and subject to discipline. Turning then to the proposed SARs, there are some positive changes proposed.


Summer 2022 dsba.ie Niall Cawley is a programmes’ director of the DSBA. He is principal of Niall T. Cawley & Co. Solicitors. Susan Martin is vice president of the DSBA and principal of Martin Solicitors

Some examples are: ) Balancing Statement instead of a balancing statement being required at the half year and the year end, it will now be required four times per year. ost, if not all, practices make a balancing statement at the end of each month as a matter of good practice. The balancing statement acts as an early warning mechanism for any errors, duplications etc. 2) Controlled Trust unds and on-Controlled Trust unds. A controlled trust a trust or administration of an estate of which a solicitor is a controlling trustee . Currently these funds must be held in a separate bank account. In the new proposed SARs these funds can be lodged to the client account. This is a very simple effective innovation which can only keep client money safe. ) aintaining a back-up of records off site. This new regulation provides that if keeping electronic accounts then the back-up must be maintained off-site. This means that the electronic file must be backed up onto say, the cloud or to a server elsewhere so that the records can be retrieved in the event of a system failure in the office. This is a very sensible regulation and most practices would already have a back-up system in place. ) eeping a copy of all electronic fund transfer payments. Most client account payments may nowadays be by EFT rather than cheque. In the circumstances it is only prudent for solicitors to keep a copy of the remittance note. There are some proposed changes, however, which the DSBA believes may require further consideration. Some examples are: A) eeping registers the new regulations provide that it will be necessary for each practice to keep a register of files, deeds and undertakings. We are concerned that this is regulatory over-reach with no further protection of client money. These registers are kept by practitioners as a matter of good practice, and to comply with requirements of their professional insurance. The oversight of undertakings is a matter for the SRA ( egal Services Regulatory Authority) and the High Court. t is difficult to see what benefit access to such registers will have for the protection of client money. Given the level of oversight already in place, the requirement for further scrutiny seems excessive. B) Access to the office account. The current SARs are concerned only with the office account in so far as it pertains to client outlay or “the client side of the office account”. The new regulations will draw in the office account into the balancing statement and further require a copy of all transfers from the office account to be kept for every transaction. It is difficult to see how scrutiny of the office account will assist with protecting client money. The office account ought to be as private as possible given that it contains details of salaries, staff bank account details, pension payments, tax payments etc on the part of the solicitor. As well as perhaps causing a concern with GD R obligations, bringing the office account into the SARs will mean a heavy compliance burden for each transaction a copy of the T will

Practice Management

need to be retained. Many practices would have hundreds if not thousands of transactions on their office account each month making the accounting, book-keeping and auditing associated with same even more expensive and burdensome. C) A record of the identity of the client and source of the funds lodged to the client account to be retained. This new regulation provides that where a solicitor receives money into the client account, the solicitor shall retain a record of the identity of the client and the source of the money received. This regulation is concerning in that it extends the obligations under the Anti Money Laundering legislation to all files. nder the current robust A legislation there is a significant burden for solicitors. This proposed regulation would extend this to all files and to each lodgement. Separately, obtaining the source of funds for every payment into the client account would create an enormous burden for solicitors and their clients take the situation, for example, where a client is paying a retainer or fee note in a number of instalments. Compliance with this regulation would mean that for every time your client lodged a sum of money to your account, say for a litigation or matrimonial case, you would require evidence of identity and proof of source of funds. DSBA Council has appointed a working group to review the proposed accounts regulations and make submissions to the Law Society. We are pleased that the Law Society has given us the time and opportunity to make such submissions. The DSBA is pro-regulation but also pro-business. ltimately clients want the work carried out as efficiently as possible with as little bureaucracy as possible. It is our job as solicitors to ensure that this happens in a safe and compliant way. P

As well as perhaps causing a concern with GDPR obligations, bringing the office account into the SARs will mean a heavy compliance burden

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Mark Finan is a practising barrister with particular expertise in the areas of European Law, Corporate Governance, Corporate Law and Civil Litigation. Caroline McGrath BL is a practising barrister in general Common Law and General Practice

Data Protection Claims The introduction of the General Data Protection Regulation in May 2018 updated the statutory framework relating to data protection across the EU. The rights of data subjects to compensation arising from a data breach is among the significant areas of change. Mark Finan BL and Caroline McGrath BL take a closer look

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rticle 82 of the GDPR addresses the liability of data processors and data controllers for breaches of the GDPR and provides data subjects with a right to compensation for material and nonmaterial damage arising from such breach. Section 117 of the Data Protection Act 2018 aligns Irish statutory law with Article 82. Despite the passage of more than four years since its introduction, uncertainty continues to exist as to the correct interpretation of Article 82. This is demonstrated by the fact of seven separate references to the CJEU during 2021 and 2022. The questions referred in these cases fall into a number of themes. These include firstly, must a data subject identify specific damage caused by a data breach to have an entitlement to compensation? Secondly, what constitutes non-material damage is upset and distress of a trivial nature caused by a data breach sufficient And thirdly, in what circumstances is a data controller or data processor exempt from liability for a data breach pursuant to Article 2( ) This article explores some of these issues and examines the extent to which existing case law under Directive 5 and the Data rotection Acts 200 , case law and the wording of the GD R itself provides guidance.

50 the Parchment

Is Specific Damage Required? Article 2( ) provides that any person who has suffered material or non-material damage “as a result of an infringement” shall have an entitlement to compensation. The wording of the article in this way would appear to support the proposition that an infringement without damage does not give rise to any entitlement to damage. However, the limited jurisprudence from courts of other EU Member States demonstrates that there is not unanimity in respect of this question. A number of German decisions have held that no compensation was payable where an infringement of the GDPR resulted in no damage. In contrast to this, certain Dutch decisions have relied on Recital 146 of the GDPR which requires a broad interpretation of damage to hold that the fact that damage cannot be specified precisely does not debar an award of compensation (Amtsgericht Die , 07- -20 , C 0 Amtsgericht Bochum, -0 -20 , 5 C 5 and others). During the consideration of the proposal for the GDPR, the question as to whether this required a data subject to prove specific damage was posed by Belgium. The response provided was that “the data subject had to prove the damage” (Council of the uropean nion, nterinstitutional ile 20 2 00 (COD) 70 5).


Summer 2022 dsba.ie

Data Protection/Litigation

Recital 4 of the GDPR provides that the right to protection of personal data is not an absolute right and must be balanced against other fundamental rights including the freedom to conduct a business in a proportionate manner. To the extent that an infringement of GDPR arises without any damage, it seems contrary to the principle of proportionality to award compensation in the absence of specific damage. The issue of compensation for damage under the previous regime was considered by the High Court in Collins v FBD Insurance PLC 20 HC 7 which involved an appeal by the Defendant insurance company against a decision of the Circuit Court to award damages to the laintiff. The appeal was brought on the basis there was no evidence before the Circuit Court which proved any specific damage. eeney . analysed s.7 of the Data rotection Acts -200 and concluded s.7 “is limited and goes no further than providing for a duty of care that is a duty of care within the law of torts” ( 20 HC 7 at para. . ). As the law of torts requires a claimant to prove the existence of a duty of care, a breach of that duty and that the breach led to specific damage, a requirement to demonstrate specific damage existed. t is of note s.117 of the 2018 Act expressly provides that a data protection act is one founded on tort. The decision in Collins was subsequently endorsed by the Supreme

Court in Murphy v Callinan 20 SC 5 . As has been acknowledged by Noonan J in The Data Protection Commissioner v Doolin 2022 CA 177, a decision concerning the interpretation of data processing, the GDPR and the previous statutory regime contain some similar provisions and therefore the interpretation of the previous statutory regime remains relevant.

What is Non-Material Damage? Both the GDPR and 2018 Act make express provision for compensation for non-material damage. While no definition of non-material damage is provided by the GDPR, the travaux préparatories suggest it may include emotional injury and distress. Recital 85 cites “loss of control over a data subject’s personal data or limitation of their rights, discrimination, identity theft or fraud, nancial loss, unauthorised reversal of pseudonymisation, damage to reputation, loss of con dentiality of personal data protected by professional secrecy” as examples of material and nonmaterial damage which may occur if a data breach is not addressed in a timely and appropriate manner. The current Irish tort law position expressed in Kelly v Hennessy 5 .R. 25 that psychological injury short of a recognisable psychiatric illness has been questioned in the context of compensation for nonmaterial damages in a data protection action.

While no definition of non-material damage is provided by the GDPR, the travaux préparatories suggest it may include emotional injury and distress

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Data Protection/Litigation

The wording of the provisions of the GDPR and its recitals point towards a need to apply the principles of proportionality to the assessment of liability and compensation for data breaches

A number of recent decisions have considered applications for damages pursuant to Article 82 GDPR and the Data rotection Act 20 . These may be of persuasive authority. In Rolfe v Veale Wasbrough Vizards LLP 202 WHC 2 0 ( B), the claimants sought damages for worry about the possible consequences of a data breach arising from the sending of a single e-mail by the defendants to a third party containing the claimants’ names, address and details of a sum due in respect of school fees to a client of the defendants. Master McCloud dismissed the claim stating “ t here is no credible case that distress or damage over a de minimis threshold will be proved. In the modern world it is inappropriate for a party to claim, (especially in the igh Court) for breaches of this sort which are, frankly, trivial.” ( 202 WHC 2 0 ( B)). Similarly, in Johnson v Eastlight Community Homes Ltd 202 WHC 0 ( B), the defendant sent an e-mail to a third party containing personal data of the claimant (her name, address, postcode, account reference number and details of recent rent transactions) amongst personal data of several other parties. The recipient of the e-mail immediately notified the defendant of the error and confirmed its deletion at the request of the defendant the same day. The claimant acknowledged no unauthorised activity had occurred on her bank account but alleged she suffered stress, worry and anxiety. aster Thornett confirmed a de minimis standard of damage is required for a claim under Article 82 GDPR. On the facts, he was satisfied this threshold was exceeded but stated this was a case where the claimant would only be entitled to “purely nominal or instead extremely low damage” and the County Court rather than the High Court was the appropriate Court to consider it. The same outcome was reached in Stadler v Currys Group Ltd 2022 WHC 0 ( B). There, ewis

J held a claim for damages pursuant to Article 82 arising from the disposal of the claimant’s smart TV by the defendant without deletion of his personal data could not be characterised as a trivial breach in circumstances where at least one of the apps on the TV was used by a third party, but the claim was “unquestionably of low value.” t is apparent from these decisions that the courts require a de minimis threshold of damage before compensation will be awarded for damage pursuant to Article 82 GDPR.

Does Strict Liability Arise? Article 2( ) provides a data processor or controller is exempt from liability where it is “not in any way responsible for the event giving rise to the damage” thereby anticipating a situation where a breach may occur for which a data processor or controller is not responsible. Further in respect of data processors, liability is restricted to situations where the processor has acted contrary to the instructions provided to it by the data controller. The wording used therefore appears inconsistent with the position that an action in data protection is a tort of strict liability. In Shawl Property Investments Ltd v A. & B. 202 CA 5 , Whelan made obiter comments about the nature of the liability imposed under the 2018 Act. These comments were made in the context of summary judgment proceedings where a counterclaim by the Appellants included a claim that the Respondent had breached the data protection rights of B by putting an unredacted version of a judgment marked with the stamp “Do not publish on website” into evidence before the High Court. B. alleged this was in breach of the 2018 Act and the GDPR. In the course of the judgment, Whelan stated “ n othing stated in s.117 or indeed the Act itself suggests that a data protection action is a tort of strict liability.” Whelan J further referred to the approach of the CJEU to the protection of personal data has been to repeatedly hold the right to such protection is not an absolute right. She concluded that “it is necessary to have regard to the principle of proportionality in evaluating claims for breaches of the DP .” A strict liability approach to data protection claims would seem to restrict a Court in the application of the principle of proportionality.

Conclusion The wording of the provisions of the GDPR and its recitals point towards a need to apply the principles of proportionality to the assessment of liability and compensation for data breaches. Case law under the previous regime and recent jurisprudence considering Article 82 suggests that such an approach is preferred. As an action expressly founded on the law of tort in Irish law, case law under the previous regime requiring the establishment of specific damage remains good law. While the inclusion of express provision for non-material damage in Article 2 expands the scope of damages for data breach claims, it appears that a de minimis standard is emerging from recent and German case law. This may be of persuasive authority to an Irish court considering such claim. It is anticipated that the various CJEU referrals will provide welcome clarification on these issues. P 52 the Parchment


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Pension Reform Lorna Osborne opines that Ireland is moving closer to commencing a ension Auto-enrolment Scheme

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fter many twists and turns and lengthy delays, the Cabinet has agreed to draft legislation to pave the way for a new pensions auto-enrolment scheme which will see potentially hundreds of thousands of private sector workers automatically enrolled into a pension scheme.

Background On 29 March 2022, Social Protection Minister Heather Humphreys received Cabinet approval to begin the process of drafting legislation which will underpin the long-awaited pension system that will see as many as 750,000 private sector workers automatically enrolled into a pension scheme. Over the years a number of attempts have been made to introduce some form of pension auto-enrolment system in Ireland but none have reached the stage of drafting legislation. Minister Humphreys noted that the scheme was a “long time coming” and that some form of a programme to supplement the state pension had been discussed for nearly two decades. Auto-enrolment is aimed at solving the problem of people who do not enrol in a pension scheme because they ‘haven’t got around to it’. inister Humphreys stated that auto-enrolment would change a system whereby workers were “often left to their own devices to navigate what is a complex world of pensions to one in which choices and options are simpli ed on their behalf.”

Features of the Scheme The following elements of the new pension auto-

enrolment pension scheme have been settled in principle by Government: • Eligibility/Ability to Opt-out All private sector workers aged between 23 and 60 years of age, who earn more than €20,000 per year will be automatically enrolled into the new scheme unless they are existing member of a pension scheme. Those outside the eligibility criteria (for example, those earning below €20,000 or those aged under 23 or over 0 years of age) will be able to ‘opt-in’ to the scheme if they so wish. Membership of the new scheme will be compulsory for the first six months. Thereafter, members can choose to ‘opt-out’. embers who choose to opt-out will receive a refund of their own contributions paid up to the point of opt-out. embers will be automatically re-enrolled after two years but will have the ability to opt-out again under the same circumstances as outlined above. The option to opt-out will only exist in the first ten years of membership and thereafter members will be able to suspend payment of contributions but they will not be entitled to a refund of their contributions instead the contributions will remain in the pot. • Contribution Levels The new scheme will see contributions paid by employees being matched by their employers and the State will also add a top-up to the money paid into the scheme. Contributions to the scheme will be introduced on the following phased basis:

Years

Employee (as % of salary1)

Employer (as % of salary1)

ears -

.5

.5

0.5

.5

.5

.5

State (as % of salary1)

ears ears 7 Year 10+ 54 the Parchment

2


Summer 2022 dsba.ie Lorna Osborne is an associate solicitor in the Corporate Law Department at Addleshaw Goddard. She is a member of the DSBA Commercial Law Committee

The scheme will be capped at €80,000 of an employee’s gross salary but people earning above that amount can still make additional contributions to the scheme. However, employers will not be required to match the amount. Accessing Funds It is proposed that there will be a limited ability for members to access their accumulated retirement savings with only serious illness being considered as grounds to do so. Administration and Investment A Central rocessing Authority (C A) will be established to administer the scheme. The pension contributions will be invested by four registered providers, and there will also be four different investment portfolios available for members, depending on their risk appetite. It is envisaged that there will be an online portal where members will be able to review the size of their pension pot. Commencement t is proposed that new scheme will come into effect from 2024. Minister Humphreys expects that the heads of bill will be drafted and approved by the Government before the end of this year, with the legislation to be enacted by the third quarter of 2023. Penalties for Employers Failing to Implement mployers who fail to implement auto-enrolment scheme for its employees or fail to deduct and remit contributions will face administrative penalties initially, and ultimately risk prosecution as a criminal offence.

Pensions

Is Auto-Enrolment the Solution to Ireland’s Pensions Time Bomb? t is estimated that just 5 of private sector workers have an occupational pension scheme. With so few private sector workers making any provision for their retirement, the fiscal implications of the hundreds of thousands of retired private sector workers relying on the state pension as the main source of their income is deeply worrying. The introduction of this auto-enrolment system is aimed at reducing strain on the already unsustainable state pension system. However, there some issues and criticisms in respect of the proposed new scheme. Chief among these is the effect the new scheme is likely to have on employers. With a backdrop of businesses recovering from the pandemic and the ongoing energy crisis, employers will understandably be concerned about the costs of this new scheme. A connected fear is that, in order to control costs, employers who currently offer more generous pension schemes may be tempted to treat the auto-enrolment scheme as a cost saving opportunity and phase out their existing schemes. However, the proposed scheme is a significant step towards dealing with reland’s ticking pensions time bomb and increasing pension coverage for private sector workers. Auto-enrolment may go a long way towards securing the financial futures of hundreds of thousands of private sector workers who at present have made no provision for their retirement. P

It is estimated that just 5 of private sector workers have an occupational pension scheme

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Use of CCTV in Disciplinary Processes Tríona Sugrue and Bernard Martin scrutinise the case of Doolin v D C 2022 where the Court of Appeal examined the use by an employer of CCT footage for disciplinary purposes

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n this Court of Appeal case, the Court upheld an earlier decision of the High Court and found such use constituted unlawful further processing.

Background

ess than a week after the 20 5 aris terror attacks, graffiti stating “ ill all whites, sis is my life” was carved into a table in the staff tearoom at Our ady’s Hospice and Care Service (the “Hospice”). Hospice management contacted Garda , who advised the Hospice to review CCT to ascertain who had accessed the room over the previous days. A viewing of the footage showed r Doolin entering the room on a number of occasions, although there is no suggestion that r Doolin was involved in the graffiti incident, but the information suggested that he had accessed the room for the purpose of taking unauthorised breaks. An investigation report which followed was entitled “Investigation into staff member (Cormac Doolin) accessing the Anna aynor ouse tea room at unauthorised times.” This report provided that the “panel have established on the balance of probabilities that unauthorised breaks were taken by r. Cormac Doolin on the afternoons of Tuesday 7th, Wednesday th and Thursday th ovember 20 5.” The report made no reference to any findings in connection with the graffiti.

56 the Parchment

This led to a disciplinary sanction against r Doolin in respect of unauthorised breaks.

The Legislation The Data rotection Acts and 200 provide that data shall be obtained only for one or more specified, explicit and legitimate purposes and not further processed in a manner incompatible with that purpose or those purposes.

Decisions of the DPC, Circuit Court and High Court The Hospice CCT policy stated that “..The purpose of the system is to prevent crime and promote staff security and public safety” and a sign was placed beside each camera, which read “Images are recorded for the purposes of health and safety and crime prevention”. r Doolin made a complaint to the Data rotection Commission (D C). The D C rejected r Doolin s complaint as it was of the view that the processing of r Doolin s data in relation to the security concerns was legitimate. The D C stated that it was “satis ed that the processing of your personal data in the form of a limited viewing of the relevant CCT footage, without downloading or further processing of any kind was necessary for this purpose and did not go beyond the stated purpose”. The D C considered that r Doolin’s data was


Summer 2022 dsba.ie Tríona Sugrue is a knowledge lawyer in the Employment Group at A&L Goodbody Bernard Martin is a senior associate in the Employment Group at A&L Goodbody

confined to the CCT images and beyond the first and only viewing of those, no further processing occurred. r Doolin unsuccessfully appealed to the Circuit Court, and then appealed again to the High Court. The High Court found against the D C s decision, stating “ the CCT footage was collected for the express and exclusive purpose of security and was used (permissibly) for that purpose but was also used for a distinct and separate purpose, i.e. disciplinary proceedings into unauthorised breaks by an employee. In the premises, it seems to me that there was no evidence upon which the Circuit Court could safely conclude that the further processing in the context of the disciplinary hearing was for security purposes...” The High Court said that it was indisputable that the information contained in the CCT footage was used for a different purpose than the one for which the data was originally collected. The fact that it was not downloaded does not mean that no further processing took place. t therefore considered, contrary to the D C’s findings, that the CCT images were further processed. The D C then appealed to the Court of Appeal, which was critical at the outset of the lengthy appeals process stating “the costs involved in all these appeals are very substantial and entirely disproportionate to the issue concerned, where there is no obvious necessity for such a multiplicity of appeals”.

Employment Law

Court of Appeal decision n the Court of Appeal, the D C argued that the case rested upon three fundamental propositions (a) The CCTV footage was viewed on one occasion only, for the purpose specified in the Hospice CCTV policy, namely security, and was not further processed thereafter. Accordingly, no breach occurred. The Court of Appeal (COA) found that r Doolin s data was in fact processed three times (i) when it was collected recorded (ii) when it was watched for the purposes of the security incident and (iii) when the data relating to the dates and times of access egress by r Doolin to and from the staff tea room were tabulated in the investigation report for the purpose of supporting a disciplinary sanction against him. (b) Alternatively, if the CCTV footage was further processed by the Hospice, it was processed for a security purpose. The COA stated that “the DPC appears to have considered that there was one investigation only into the security issue and therefore the outcome of that investigation must be regarded as security related”, but one of the central features of the case was that it was never explained by the Hospice or the D C, how the taking of unauthorised breaks could be said to amount to a security issue.

The High Court said that it was indisputable that the information contained in the CCT footage was used for a different purpose than the one for which the data was originally collected the Parchment 57


Employment Law

The case highlights the importance of having clear policies and procedures in place for processing personal data relating to employees

58 the Parchment

The COA did not agree that there was only one investigation and so found that it could not be that the investigation was for the purpose of security. By way of example, the COA pointed out that the title of the investigation report does not refer to security but describes the report as an “investigation into staff member (Cormac Doolin) accessing the Anna aynor ouse Tea oom at unauthorised times.” The COA went on to state that “the processing of Mr Doolin’s data was not for a security purpose as the DPC contends. It was manifestly for a different purpose but of course that is not the end of the in uiry. It is necessary thereafter to carry out a compatibility assessment ...” (c) In the further alternative, if the CCTV footage was further processed and such processing was not for a security purpose, then it was for a purpose that was not incompatible with the security purpose. The COA agreed with the D C that the mere fact that data was used for a different purpose does not mean that the use was unlawful and that it is only where the further processing occurs in a manner incompatible with the stated purpose that an illegality arises. The D C argued that every employee entering the room for a defined period of time had to be regarded as a suspect for the graffiti incident, including r Doolin, and accordingly the unauthorised access had a clear security dimension and was integral to the investigation of the graffiti. The D C argued that it must follow, that even if the disciplinary process was not expressly for a security purpose, it was for a

related purpose and thus not incompatible with the specified purpose. The COA disagreed and restated that there was absolutely no evidence that the taking of unauthorised breaks represented a security issue in itself.

What Does this Mean for Employers? The case provides a cautionary tale for employers in terms of relying on CCT footage in disciplinary processes. n the first instance, employers should ensure that they comply with data protection principles when using CCT , as outlined in the DPC uidance on the use of CCT for Data Controllers. The case highlights the importance of having clear policies and procedures in place for processing personal data relating to employees, particularly in relation to CCT footage. An organisation must carefully consider the purpose(s) for which it is collecting personal data, and ensure these purposes are clearly set out in the organisation’s data protection notice policy, and are communicated to employees and or other data subjects whose personal data is collected. Although further processing of personal data is not automatically unlawful, it is more likely to be so where the further processing is not related to the original purpose would not be expected by data subjects could have unforeseen or negative impacts on data subjects and no additional safeguards have been applied to ensure fair and transparent processing. P


Summer 2022 dsba.ie Frank Flanagan is a partner in the Dispute Resolution Team at Mason Hayes & Curran

Litigation/Insolvency

Link Between Personal Insolvency and Litigation rank lanagan reports on where the High Court has held that disclosure of debts and undertakings given to the Circuit Court in seeking a protective certificate for a personal insolvency arrangement can be relied on in other proceedings

Background The McLaughlins were engaged in a long running saga of litigation with Bank of Scotland plc (“BOS”) and, after a loan sale, nnis roperty inance imited (“ nnis”). n 20 they issued High Court proceedings against nnis and Tom avanagh (the “ lenary roceedings”). n 20 , the c aughlins sought to avail of a personal insolvency arrangement. The solicitors for nnis requested the c aughlins’ personal insolvency practitioner to bring the Plenary Proceedings to the attention of the Court. Their first application to the Circuit Court for a protective certificate was refused because the Court was told that, although the debt owed to nnis was set out in the prescribed financial statement, the debtors intended admitting that debt in the personal insolvency process but denying it in the plenary proceedings. The solicitors for the McLaughlins then wrote to the nsolvency Service of reland confirming that any proceedings the c aughlins may have issued concerning either BOS or nnis would immediately be discontinued. A protective certificate was then obtained on the understanding that the Plenary Proceedings would be discontinued. They were not discontinued.

The motion to strike out The lenary roceedings came back before the High Court on the defendants’ motion to dismiss 2022 HC 2 . The statements of affairs The McLaughlins tried to argue that the prescribed financial statements delivered in personal insolvency proceedings could not be relied on against them in the lenary roceedings. The Court firmly rejected that proposition “I do not accept that as a matter of principle that the 2012 Act was intended to establish an extra judicial process which would be hermetically sealed from any court proceedings in respect of the same debts to the extent that reference can

not be made in court to the contents of a personal insolvency application and particularly not where that material has been relied on in an application to court under the 2012 Act.” and “If they wished to continue to dispute their liability for the loans in issue in these proceedings, then they should not have entered into the personal insolvency process under the 2012 Act.” The assurance to discontinue The McLaughlins further contended that the assurance that the Plenary Proceedings would be discontinued could not be relied upon in the Plenary Proceedings. That was also firmly rejected “In the meantime, the plaintiffs had, and retained the bene t of, a protective certi cate granted on the basis of that assurance. The existence of the protective certi cate impeded the progress of … and the hearing of this motion. Although they did not achieve a resolution of their indebtedness through the personal insolvency process, they cannot now turn around and say that the assurance which they gave for the purposes of securing a Circuit Court order is one of which the High Court cannot take cognisance in these proceedings. I regard the behaviour of the plaintiffs as completely reprehensible in this regard.”

Comment This judgment is useful in that it confirms that statements of affairs and assurances given to the Circuit Court, even in failed personal insolvency proceedings, can be relied on in other proceedings. It is not unusual for borrowers engaged in litigation with lenders to seek to avail of personal insolvency processes and the appetite for availing of such processes has increased in recent years. Helpfully, the Court has rejected the ability to adopt a duplicitous approach in those circumstances and it appears there is scope to have such litigation dismissed on the basis of the papers filed in the personal insolvency process where there is an acceptance or acknowledgment of the liability. Therefore, it is important that lawyers dealing with litigation with borrowers have sight of any papers filed in relevant personal insolvency processes. P the Parchment 59


Patrick Longworth is an associate solicitor at McCann Fitzgerald

DSBA Soccer

DSBA Solicitors’ League kicks off again ... With the Premier League season over and no summer soccer tournament this year owing to the winter World Cup in Qatar, atrick ongworth says the eyes of the football world are firmly fixed on the DSBA Solicitors’ eague

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he Solicitors’ eague brings together the top footballing talent in the Dublin legal community and returns this year for the first time since 20 , after it couldn’t go ahead due to Covid- in 2020 and 202 . As usual, all matches will be played on the aw Society pitch at Blackhall lace. Overlooked by the aw Society building at one end and the high walls guarding Collins’s Barracks at the other, there can scarcely be a more picturesque setting for a game of football on a summer’s evening. There is a very strong field of teams this year, split into three groups, with the best eight teams qualifying for the quarter finals. The final will be played on Wednesday August. atches got under way on une with two fixtures in Group A. n the first of the two games, A Goodbody beat ‘Big 5’ rivals Arthur Cox 2 0. n the second match that evening Byrne Wallace played an amalgamated team made up of recent entrants to the rish legal market, D A iper, and legal support services company, efron with D A efron running out -0 winners.

The three groups in full are as follows: Group A: A Goodbody, Arthur Cox, Byrne Wallace, D A efron, The aw ibrary, Walkers Group B: Beauchamps, atheson, cCann it Gerald, William ry and ‘Classy ry’ (amalgamated team made up of Beale Co, RD , the CSSO, lynn O’Driscoll and Reddy Charlton) Group C: Criminal raternity (amalgamated team of criminal practitioners), Dillon ustace, versheds, aples, ason Hayes Curran All three groups looks very competitive, in particular Group B which sees the two finalists from the 20 tournament, atheson and cCann it Gerald, drawn together. n the 20 final, cCann it Gerald won an epic contest - on penalties after the match ended 2-2. That was the first time cCann it Gerald won the most coveted trophy in football in years. However, having now retained the title (by default) since then, no doubt atheson and the rest of Group B will be looking to have a cut at McCanns before the tournament reaches the knock-out stage. Since the last edition in 20 , there has of course been a lot of transfer activity in the Dublin legal market, as well as three intakes’ worth of new trainees looking to break into some of the established squads, meaning some teams could have a rebuilding job of rik Ten Hag anchester nited proportions on their hands. So this year, perhaps more than any other year, the form guide is out the window, and it really is all to play for.

It’s great to be back!

Photo of the McCann FitzGerald squad before the 2019 final 60 the Parchment

The DSBA is delighted to continue the running of the Solicitors’ eague, which it has done since 200 . or more information on the DSBA Solicitors’ eague, please contact maura dsba.ie or patrick.longworth mccannfit gerald.com P


Summer 2022 dsba.ie Photography: Owen O’Connor

DSBA Event

DSBA Annual Cricket Match against the Bar The Annual John F Buckley cricket match between The DSBA v The Bar of Ireland took place on the 24th June 2022 at the Leinster Cricket Club, Observatory Lane, Rathmines. The match is now in its fourth year and the teams played for the John F Buckley trophy, named after the late John F Buckley who was a former DSBA President. Well done to all who participated in the event.

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Julienne Jameson is general legal counsel and data protection officer with the Ewopharma Group

EU Law

Legal Counsel before European Courts must be Independent! n an expansion of the concepts set out in the Ak o obel competition case, the General Court of the uropean Court of ustice has clarified its expectations in relation to the concept of independent legal counsel. ulienne ameson observes that the clarifications are a blow to in-house lawyers, who strive to be recognised as independent

T

he German Case of and C vs. uropean nion ntellectual roperty Office ( O) (joined cases C-52 and C-5 a ) was a trademark annulment dispute. owned an word mark, rman Rossi, which was annulled by the O. challenged this decision. The application to challenge was signed by r S, who was employed by a law firm ( aw irm ) co-founded by . The appeal was found to be inadmissible as r S, who signed the appeal form, was not independent as required by applicable law. As a matter of procedural law under the Statute of the Court Art ( - ) of the , only independent lawyers can represent actions before it. The joined cases set out that such a lawyer must have complete independence and be bound by professional and ethical rules. The General Court found that the fact that decisions within aw irm were taken unanimously meant that , in his capacity as a artner, exercised effective control over all decisions made by that law firm. This would include r S’s conduct of the case in question. The Court emphasised that r S would not have the same level of independence from as a lawyer working for a different law firm where his client was not a deciding artner. The Court, disappointingly, noted that r S would not have the same ability to advise professionally, excluding the goals of his client. The Court referenced case law that characterised independence as stemming from both positive and negative concepts. The former characterised by not having an employment relationship and the latter in relation to execution of professional judgement duties (see, to that effect, judgment of ebruary 2020, niwersytet Wroc awski and oland v R A, C-5 5 7 and C-5 7 , C 2020 7 , para. and the case law cited there) The Court further clarified that it was not that a lawyer could have no connection to their client, but that they could not have a connection

62 the Parchment

that would hinder them executing their duties in accordance with their professional ethics. The inference from the PJ Case Judgment is that in-house lawyers could not be considered independent from their employers, underpinned by the presumption that the employer exerts a level of control that affects that ability to be independent. t is submitted that this presumption is a fallacy. t suggests that in-house lawyers are incapable of abiding by their rules of ethics and professional conduct if their client employs them. s this an unfair assertion to blindly cast upon all in-house counsel alone Certainly, many private practice law firms have clients who are weighted in their importance due to their billing levels. That type of financial dependence could have an analogous effect on the independence of such a private law firm and the lawyers who work there. conomic dependence has many forms. nstead, the proper assumption is that any lawyer correctly carrying out their duties, has the ability to properly and strategically advise, represent and act on their client’s instructions in line with their ethical and professional code of conduct. Another option would be to legislate for in-house lawyers that they can be penalised in the execution of their duties, similar to that contained in the General Data Protection Regulation 20 7 for data protection officers. t is arguable that such legislation probably exists indirectly in local applicable employment legislation. onetheless, it is recommended that delineation based on who employs the lawyer is not particularly helpful. The Courts, and the regulators of the profession, should seek to enforce a basic premise. That is, if a lawyer cannot abide by their ethical code of conduct and advise objectively, even if such advice takes account of their client’s strategic interests, then the law is not a suitable career, no matter who their client is. P


Summer 2022 dsba.ie Photography: Owen O’Connor

Left to right: Joan Doran, John Costello, Anslem Eldergill, Niall Brunell, DSBA President Diego Gallagher, Áine Flynn and Áine Hynes SC

DSBA Seminar

DSBA Seminar on the Assisted Decision-Making (Capacity) Act 2015 The DSBA hosted a seminar on the 17th June 2022 offering practical guidance for solicitors on the new decision support structures and applications under the 2015 Act. The speakers at the event were Áine Flynn, Director of Decision Support Services; Áine Hynes SC, St. John Solicitors; Judge Anselm Eldergill, Judge of the UK Court of Protection; Joan Doran, Doran Solicitors and John Costello, Orpen Franks Solicitors.

Left: Dermot Hewson, MacHales Solicitors; John Murphy, John A Sinnott & Co, Declan Joyce, Kelly Colfer Son & Poyntz and Liam Hipwell, Liam Hipwell & Co Far left: Hilary Clarke, Arthur McLean & Co and Anne-Laure Chasse McDermott, Legal Aid Board

Right: Patricia Donnelly, St. John Solicitors and Marissa O’Keeffe, St. John Solicitors Far right: Joe Durkan, Keith Walsh Solicitors and Sean O’Brien, O’Brien Ronayne

Left: Katherine Butterly, Joan Doran Solicitors and Dervla Mulcahy Far left: Sally Ann McCoy, Dillon Solicitors and Jennifer Morrow, Gartlan Furey

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DSBA Seminar

DSBA Seminar on Personal Injuries The DSBA’s Litigation Committee hosted a seminar on the 7th April 2022 addressing various aspects of Personal Injuries litigation. The speakers at the event were Andrew Walker SC, Michael O’Doherty BL and David Boughton BL.

Photography: Owen O’Connor

Left to right: Killian O’Reilly, Chairman, Piarais Neary, HOMS Assist, Andrew Walker SC, David Boughton BL and Michael O’Doherty BL

Left: Stefan O’Connor, Mannion Solicitors; Barra O’Cochlain, Colm O’Cochlain & Co and Shane Carty, Kent Carty Solicitors LLP Far left: Ursula Cullen, Miley & Miley and Michael O’Doherty BL

Right: Margaret McGinley, State Claims Agency, Frederique Duchene, Chief State Solicitors Office and Siobhan Hayes, State Claims Agency Far right: Stephen Bradley, FBD Solicitors and Brendan Byrne, Byrne & Co

Left: Monika Kealy, Tracey Solicitors; Piarais Neary, HOMS Assist and David Boughton BL

64 the Parchment


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