Parchment Summer 2024

Parchment DSBA.IE

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D UB LIN SOLICITORS B AR ASSOCIATION MAGAZ INE | S UMMER 2024 | ISSU E 100

ENDURING POWER OF ATTORNEY (EPA) SYSTEM How did we get here and where do we go now?

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Summer 2024 dsba.ie

From the Editor

W

elcome to the summer edition of the Parchment. The DSBA Mental Health and Capacity Committee recently undertook an online survey of DSBA members on the Enduring Power of Attorney (EPA) system with the Decision Support Service (DSS).

The preliminary results of the survey confirm the concerns that most of us had, but we had hoped that there would be some silver lining. Alas, no.

Unfortunately, the current EPA system is unworkable.

I have tried to assist a number of older clients on the process, but I very reluctantly gave up due to the red tape, frustration and time involved. It is scandalous that we are being asked to sign off on EPAs of non-clients who present themselves at our front doors. It seems that most solicitors are not taking on this work due to the attendant risks.

As the survey results reveal, many colleagues are not prepared to put their practising certificates on the line. The (new) system is wide open to abuse –

particularly where there is an unquantifiable risk of undue influence. Mixing a vulnerable and IT illiterate person with an overly eager ‘family member’ or ‘friend’ involved in the background with an unhealthy desire and interest is a recipe for exploitation. The possibility of an alarm bell being sounded in such instances has hugely diminished. Solicitors were previously that alarm bell – and that safeguard has now been removed.

I would encourage you to read some of colleagues’ comments and feedback on the DSS system on the survey results article on pages 6-7.

As the summer break nears, I wish you all a great break – switch off from the demands of work and recharge those batteries!

John Geary jvgeary@gmail.com

DSBA COUNCIL 2023/2024

MATTHEW KENNY DSBA President

NIALL CAWLEY DSBA Vice President

PAUL RYAN CPD Director Commercial Committee

JOAN DORAN Honorary Treasurer

CIARA O’KENNEDY Honorary Secretary

AVRIL MANGAN Chair of Practice Management Committee

JESSICA HICKEY Chair of Commercial Law Committee

CIARA HALLINAN Chair of Criminal Law

EIMEAR O’DOHERTY Chair of Inhouse Solicitors Committee

PATRICK LONGWORTH Litigation committee

STEFAN O’CONNOR

ÁINE GLEESON Chair of Property Law Committee

CLIONA COSTELLO Chair of Family Law Committee

MARCUS HANAHOE Chair of Litigation Committee

ZOE HUGHES Chair of Probate Committee

PUBLISHED BY The Dublin Solicitors Bar Association, Unit 206, The Capel Building, Mary’s Abbey, Dublin 7

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

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

All prices are correct at

time of going to press.

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

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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

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

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 2024

Contents 6

DSBA member survey on Enduring Power of Attorney

How Did We Get Here and Where Do We Go Now? Áine Hynes SC analyses the issues faced and what can be done with the new EPA system

12

DSBA Law Book Awards

16

Influencing the Law

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Good Conveyancing Practice

The Annual DSBA Law Book Award winners were recently recognised for their outstanding work and achievements

Julie Doyle meets Sarah Irwin, former barrister turned solicitor turned Irish Tech General Counsel turned entrepreneur and B2B Influencer

Áine Gleeson, Chair of the DSBA Property Committee, takes a look at the Residential Conveyancing process

28

Important Changes to Circuit Court Rules Kevin O’Keeffe sets out an important development in mortgage litigation where the 12-year statute rule has been removed

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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page 16

INFLUENCING THE LAW... SARAH IRWIN

The DSBA Mental Health and Capacity Committee has issued an initial survey to DSBA members around the provision of EPAs

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I didn’t want to be a barrister or live in London anymore. I had done five years of grafting in court earning no money

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Summer 2024 dsba.ie

Contents

REGULAR FEATURES 01 Editor’s Note 04 President’s Message 60 News 62 Photocall

44 30

The Dáil Revolutionary Courts Brian Walsh looks back 100 years to the Dáil Revolutionary Courts and their role in Ireland between 1920 and 1924

34

The Noble Champion

40

Recent Landlord and Tenant Case Law

Kevin O’Higgins met with former President of the Law Society and now Dundrum-based Solicitor John Costello who reflects on a legal career with many achievements

Ruth Cannon BL says that the past two years have seen interesting new developments in landlord and tenant law

44

Flexible and Remote Working Rights

46

Mark Fitzgibbon assesses the new Workplace Relations Commission code

46

Pregnant and Heading for Belfast

48

Burnout in the Legal Profession

Giving her own personal insight, Maeve Delargy outlines the shortcomings of the Children and Family Relationships Act 2015

Michael J. O’Neill shines a welcome light on how we cope as members of the legal profession

50

The Control of Litigation Costs?

Aisling McHugh assesses the landscape

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Message from the President

A Lot Going on Criminal Legal Aid By the time this edition of the Parchment lands on your desks our colleagues in the Bar Council of Ireland have had to withdraw their services over three days in July. We support the proposed action by our barrister colleagues.

As solicitors are a statutory profession, we have different obligations and responsibilities, and we are not entitled to withdraw our services in the same way.

However, the DSBA has once again sought urgent talks with the Government to address this issue and legal aid reform.

Although we have an adversarial system of law it should not be forgotten that our solicitor colleagues who practice in the area of criminal defence have for many years worked very well with the Bar Council, the State, the DPP, the judiciary and Court Service to ensure that we have an effective system of justice. It is regrettable that the Government have failed to restore legal aid rates to acknowledge the vital role our members play in our criminal justice system.

The Assisted Decision-Making (Capacity) Act The Assisted Decision-Making (Capacity) Act has been operational for over a year.

The DSBA and many of our members are acutely aware of the practical issues and concerns which have arisen from the new DSS system used for the creation of an EPA since 26th of April 2023.

In an effort to assist our members the DSBA Mental Health Committee issued a survey to DSBA members on the practical reality of EPAs one year on. We received a huge response to our survey and the overall findings were dramatic. This edition of the Parchment has the results of our survey and pertinent articles from Aileen Curry and Áine Hynes on this issue.

Reform of the Conveyancing Process Áine Gleeson, Chair of the DSBA Property Committee, has a very helpful article in this Parchment on the Residential Conveyancing process and the key points for ensuring that a conveyance goes smoothly. It is understandable that there is focus on the housing crisis. Solicitors in practice are both professionally and personally affected by this issue. From a professional point of view Áine’s article highlights the proactive 4 the Parchment

steps our members might encourage their clients to take and the issues that cause delay which may be beyond our control for now.

Delays in Family Law Matters The DSBA is aware that there is an overwhelming number of queries and real concern in relation to access to justice regarding family law matters. There is an acute issue regarding the delays experienced by our members in obtaining appointments for the issuing of family law pleadings or the obtaining of orders. Whilst we have raised this issue with the Court Services, we are

yet to receive a response. We have once again raised the concerns of our members.

Sports and Social Events Since the Spring edition of the Parchment, we have hosted our hike and the John F. Buckley cricket match. Our Young Members committee and in particular Patrick Longworth of McCann Fitzgerald organise our annual football league and that is ongoing as we go to press.

I hope all of our members enjoy a rest between now and our Autumn edition.

Matthew Kenny, DSBA President

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The DSBA Survey on Enduring Power of Attorney In an effort to get a clear picture of just how our members and their clients are being affected, the DSBA Mental Health and Capacity Committee have issued an initial survey to DSBA members around the provision of EPAs

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he Assisted Decision-Making (Capacity) Act 2015 (as amended) has now been operational for over a year. The DSBA on behalf of its members are aware of the many issues and concerns now arising with the creation of Enduring Powers of Attorney (EPA).

Below is a sample of responses received to many of the questions raised.

Prior to 2023 100% of the survey respondents provided an EPA service. Following the introduction of the legislation this has significantly reduced to just under 36%.

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We asked respondents why they are no longer providing this service. Amongst the responses were: “The new system of creating EPAs is unsatisfactory.

Until a Solicitors’ Portal is available, we will not consider assisting any client in completing an EPA.” “DSS system has increased risk to client and to solicitor.

Solicitors’ involvement limited to signing off legal statement without proper knowledge or instructions. Inadequate safeguards and no solicitors’ portal.”

“We are presently trying to come up with a way to navigate the process. It is likely that the time required will make it cost prohibitive for clients.”

“We have done a small number (approximately four) certifications for clients whom we know well. To do a manual application is cost prohibitive for clients, we have little support staff that could take away some of the administration so solicitors would be doing it. Ditto re helping client with portal application…. It is very unsatisfactory for clients who used to leave our office knowing their affairs were in order. It needs to change so that it is easier to put an EPA in place. The current system will result in additional pressure on the Court system where more DMR applications will be needed.”

“We have not had one EPA registered. We have a number in with the DSS for registration over six months. Possible that the donor has since lost capacity.”

“The new system is wide open to abuse – particularly, undue influence of ‘family members’ of vulnerable and IT illiterate persons.”

“It is not acceptable to be asked to ‘sign off ’ like a rubber stamp on a process that you are not fully involved in. Too risky.”

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Enduring Power of Attorney

“I can’t participate in this. I can only advise and direct.

Before May 2023 I would prepare and execute up to 10 EPAs in a week.”

“Statutory changes have removed our role and function to the detriment of a timely and professional service to the community. We do not have the staff to engage in the lengthy DSS online process to create an EPA. Also, we are not certifying any matters which are beyond our control and knowledge.”

“Still waiting for written confirmation registration completed (10 months later).”

“Not willing to sign into the DSS portal where using the alias of my client as I have to and can only sign in using the personal account of my client. We could be open to allegations of incorrectly using the personal account of individuals in completing that form. If there was a solicitors’ portal at least then everyone will know that it was the solicitor who completed the EPA.” “There is no facility for us to do them online. Also, it is ridiculously cumbersome and involves too many people. Why do so many people have a right to be informed and to object?

I would not do one for myself on that basis.”

“System too cumbersome and regulations not clear. Too time consuming and clients not willing to pay appropriate fees for time involved.”

“I am the only person in my office doing this work. I do not have the time to sit for a few hours with a client and attorneys to go through the online process with them. I do not know what fees to charge for such work either.”

“The new system is not conducive to my office providing legal services in this area.”

Of the total number of DSBA member respondents only 24% of our solicitor members have submitted an EPA in the last year with over 75% finding the process “unworkable”, “time consuming” and “not fit for purpose”.

The time-consuming element of the new system came sharply into focus through our survey. Many solicitors have been unable to complete an EPA for their clients since the introduction of the DSS system.

One solicitor commented: “We have not had one EPA registered. We have a number in with the DSS for registration over six months. Possible that the donor has since lost capacity.”

This current arrangement is leaving solicitors in an invidious situation where they are finding it difficult to assist their clients, many of whom are elderly and vulnerable people, who are concerned about their future, in the event of losing capacity.

The sense of frustration is palpable amongst the profession, one colleague noted: “Statutory changes have removed our role and function to the detriment of a timely and professional service to the community. We do not have the staff to engage in the lengthy DSS online process to create an EPA. Also, we are not certifying any matters which are beyond our control and knowledge.”

In summary the results of this survey clearly highlight serious concerns with the current creation of EPAs and the new system. The DSBA intends to maintain a strong line of communication with its members in relation to this issue. The Mental Health and Capacity Committee would like to thank all the DSBA members for completing the initial survey as it gives the DSBA as an organisation a clear view on how you and your clients wish to be represented on this issue. P

Q1 Did your firm provide EPA services to clients prior to April 2023?

Q2 Since April 2023 is your firm still providing that service?

Q3 If your firm is still providing EPA service for clients, are you:

Q4 How long on average is the entire process taking?

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How did we get Here and Where do we go Now? Practitioners are all too aware of the issues that have arisen in practice since the new system for Enduring Powers of Attorney (“EPA”) was introduced on the 26 April 2023 on the commencement of the Assisted Decision-Making (Capacity) Act (“the 2015” Act”). Áine Hynes SC analyses the issues faced and what can be done

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he 2015 Act, as originally drafted, was broadly similar to the Powers of Attorney Act 1996. The EPA instrument was to have been specified/drafted by the relevant Minister by way of regulation and registered with the Decision Support Service (“DSS”) when the donor lost capacity.

Two-stage Registration Process The Assisted Decision-Making (Capacity) (Amendment) Act 2022 altered the situation greatly.

The changes included a two-part registration system which means firstly that the EPA instrument must be registered with the DSS on creation and secondly, when the donor loses capacity, it must be notified to the DSS by way of a further registration process. The Law Society made submissions on the proposed changes which outlined its serious concerns regarding the new two-step registration process and recommended that this should not be adopted. The submissions can be accessed here:8 the Parchment

https://www.lawsociety.ie/globalassets/documents/ submissions/2022-submission---adma-2015.pdf The Law Society’s submission and recommendation is reflected in the report of the Joint Committee on Children, Equality, Disability, Integration and Youth Report on the pre-legislative scrutiny of the General Scheme at recommendation 53 which called for the “Removal of the two-step process for registering an EPA. Alternative approaches should be developed in conjunction with DPOs and other stakeholders, including those who made submissions to the Committee on this matter.”

Significant stakeholders such as the solicitor’s profession were not consulted further on foot of that recommendation. The new DSS system does not serve donors who need to create EPA instruments on an urgent basis; donors who are not digitally skilled; and those donors who do wish to instruct their solicitors in the creation of their EPA instruments.

Summer 2024 dsba.ie Áine Hynes SC is a partner at St. John Solicitors and a former President of the DSBA

The Devil is in the digital The Amendment Act also shifted responsibility for the specification/drafting of the EPA instrument from the Minister to the Director of the DSS. With a further late amendment to the 2015 Act, in May 2022 (insertion of a new s95B), the DSS can specify that the instrument is in electronic form. The application is to be made via the DSS Portal System. This is called MyDSS. The following is necessary in order to access the digital MyDSS portal:1. The donor and attorneys must be computer literate 2. The donor and all attorneys must create a MyDSS account online 3. In order to create a MyDSS account, the donor and all attorneys must have their own email address and a PPS number 4. To verify a MyDSS account, the user must have a verified MyGovID account 5. To create a MyGovID account, the user must have a mobile phone and a Public Services Card (PSC)

Enduring Power of Attorney

6. To obtain a PSC card, the user must make an appointment and present in person at their PSC Centre with sufficient identification.

There is no doubt but that the donor must be digitally literate just to access the MyDSS Portal.

Whilst the laudable intention of government is that donors should create EPAs at an early stage, the reality is that many people wishing to create an EPA do so in circumstances where they are concerned about losing capacity, following on from a diagnosis of dementia or Alzheimer’s disease. These are conditions which, in the main, affect an older cohort of the population. That cohort are quite likely to be excluded from creating an EPA on the MyDSS system unless they are assisted in doing so.

There is no doubt but that the donor must be digitally literate just to access the MyDSS Portal

But What about Solicitors?

Crucially, there is no solicitor portal, so solicitors cannot access the portal system directly on behalf of their clients. The Revenue’s online ROS system allows a tax adviser to prepare and file returns for a the Parchment 9

The requirement for solicitors to have access to the DSS portal system should have been a key consideration at the initial design stage of the system

taxpayer, solicitors have their own portals to access Tailte Eireann, the Companies Registration Office and the Injuries Resolution Board’s web-portal. The requirement for solicitors to have access to the DSS portal system should have been a key consideration at the initial design stage of the system. It has become clear that the DSS digital system was not designed for donors to have their solicitors involved in the EPA application process.

It also became evident on commencement that the only way for solicitors to act for their clients on the creation of an EPA instrument was for solicitors to log onto their client’s MyDSS Portal. The position is that many solicitors do not wish to use their client’s MyDSS portal as there is an entirely reasonable apprehension that it may increase risk for the solicitor concerned. In addition, solicitors report that many of their clients do not have an email account it would not be appropriate that a solicitor create an email account for a client.

The DSBA and the Law Society met with the DSS shortly after commencement and made the following requests:• That the DSS make properly available a specified EPA Instrument as was the case for the freely available specified instrument under the 1996 Act (this is a requirement under the 2015 Act) • That a Solicitor Portal be provided • That there would be a web-based form to use with clients or a paper-based workaround for solicitors and their clients.

In June 2023, following communications and meetings with the DSS, the DSBA and the Law Society, an arrangement was reached that solicitors could complete a paper-based application for their clients. This has proven very time consuming, however, many solicitors wish to use this manual process for the reason stated above.

Removal by the DSS of the Paper-based Option where a Solicitor is Acting for a Donor In March of 2024, the DSS published a new Accessibility Policy. This states that where a person

10 the Parchment

has accessibility issues, they may complete a manual paper-based application. However, if they are being assisted by a professional, they will not be considered as having accessibility issues. This means that where a solicitor is acting for a donor, they can only do so via their client’s MyDSS portal. On learning of the proposed changes to the accessibility policy in April 2024, the DSBA and the Law Society met with the DSS to outline the grave concerns about the impact of this for clients and solicitors. The Law Society also met with Minister Rabbitte and the department of Children, Equality, Disability, Integration and Youth.

The Law Society again called for a Solicitor Portal, and in the meantime, submitted that a paper-based option must remain in place where a solicitor does not wish to use their client’s MyDSS. However, despite negotiations, the DSS is commencing the Accessibility Policy from the 8th of July 2024.

I am aware that many solicitors are not prepared to use their clients’ MyDSS portal and it is entirely the prerogative of those solicitors not to do so. I am also acutely aware of deep disappointment within the profession that many solicitors can no longer provide their clients with the reassurance that they have left their solicitor with their affairs in order. The new Accessibility Policy means that donors assisted by professionals, including solicitors, are denied from having access to the paper-based process and in effect there is now a “digital only” policy in respect of those donors. As such the Policy serves to exclude a significant number of donors who do wish to use the services of their trusted family solicitor.

Where do we go now?

The DSS has advised that a solicitor’s portal will not be available in the short term – the DSS have advised that it will cost in excess of €1.5 million and take at least 18 months to set up. There has been no commitment to the creation of a solicitor’s portal and the reality is that despite great efforts by many solicitors, the DSBA and the Law Society, that this solution to the current difficulties will not be made available.

Clearly, solicitors cannot be compelled by any agency to act for clients where they have concerns about using their client’s MyDSS portal. Nor can solicitors be compelled to complete the Legal Practitioner statement required to validate an EPA instrument as prescribed by virtue of s60 of the 2015 Act. Indeed, it is difficult for a solicitor to certify that they have no reason to believe that the instrument is being executed by the donor as a result of fraud, coercion or undue pressure unless they have been involved in the process from the outset. It is likely that consideration will be given to the removal of the requirement for a Legal Practitioner’s statement. However, the indemnity provided by solicitors as to the integrity of the process, which serves to avoid complaints and future litigation, will likely need to be carefully considered by the Oireachtas, prior to any such removal.

Further consideration must also be given to the validity of the DSS system as currently operated. The legislation does not envisage an initial submission of an application form, after which, the Director provides the donor with the specified form for the instrument and documentation to be completed. The DSS website notes that on making an application, the donor “will be

Summer 2024 dsba.ie

Enduring Power of Attorney

provided with forms that are unique to you as part of that application.” It further states that “the unique forms are the only forms that will be accepted by the Decision Support Service”. This does not appear to be in line with the legislation which provides that an application for registration will take place after the execution of the EPA instrument and after the completion of supporting documentation (s68(1)).

It is easily foreseeable that a client may wish to make an EPA in urgent circumstances prior to going through the application process currently being employed. If that EPA is materially in line with the requirements of the statute, it would appear by virtue of s69(1A) that it should be accepted for registration.

How to Assist Clients in Supporting their will and Preference The current system has not responded to the needs of donors – only 167 EPA instruments were registered in the first 12 months of operation of the DSS system.

It is inevitable that solicitors will continue to have concerns about their role in the EPA process for all

the reasons described above. There does not appear to be any simple or short-term resolution to the problems which have been well-rehearsed within the profession. Whilst such resolutions are actively being pursued by the DSBA and the Law Society, solicitors may wish to consider alternative means of ensuring a client’s will and preference are respected in the event they lose capacity.

Affidavit of Wishes in the Event a Person Loses Capacity Richard Hammond S.C., speaking at the Solicitors Growth Seminar on Enduring Powers of Attorney, on the 30th of May 2023, discussed the creation of an Affidavit of wishes. He noted that in view of the difficulties being faced in the creation of an EPA, a client may wish to complete an Affidavit of wishes in the event that client loses capacity, and an application is made to the Circuit Court.

The Affidavit might usefully set out who the client wants to appoint as a Decision-Making Representative and what matters the DecisionMaking Representative will deal with. P the Parchment 11

DSBA President Matthew Kenny with authors Claire Bruton BL, Clíona Kimber SC and Ms. Justice Marguerite Bolger

DSBA Law Book Awards The Annual DSBA Law Book Awards saw the cream of legal writing and legal publishing turn out in force and the winners recognised for their outstanding work and achievements

Left to right: Louis Masterson B.L, Sandra Buckley CEO Bloomsbury Professional, Paul Egan SC (at back), Attorney General Rossa Fanning SC and Benedict Ó Floinn SC 12 the Parchment

Co-authors of Medical Inquests by Clarus Press were Roger Murray SC, Doireann O’Mahony BL and David O’Malley

Summer 2024 dsba.ie

DSBA Law Book Awards

Photography: Mark Harrison

Author of Irish Securities Law Paul Egan SC with Attorney General Rossa Fanning SC

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his year the DSBA Irish Law Book Awards honoured authors who published legal books in the years 2021 and 2022.

This year’s event honoured and recognised the late Attracta O’Regan, former barrister, solicitor and Head of Professional Training & Law Society Finuas, who was a great supporter of the DSBA Law Book Awards and who in her too short lifetime made an outstanding contribution to the Irish legal profession. For the first time the DSBA presented an international award for outstanding lifetime contribution to law and to society both nationally and globally. Former President of Ireland Mary Robinson was the worthy recipient.

Yet another first this year was the presentation of the DSBA Legal Podcast Award which honoured an exceptional team of legal podcasters.

The years 2021 and 2022 produced an exceptional number of legal volumes and all nominees and publishers were worthy of an award, and it was very difficult for the judges to pick one winner. Immense thanks are due to our sponsors who have loyally supported this event for the past 10 years and who are Peter Fitzpatrick and Co. Legal Costs Accountants and Law Society Skillnet.

The judging panel for the DSBA Law Book Awards were Parchment editor John Geary, Stuart Gilhooly SC, Áine Hynes SC and Chair Keith Walsh SC.

2. Egan, Irish Securities Law – Paul Egan SC, Bloomsbury Professional.

Sponsors

Practical Irish Law Book of the Year – 2021/2022 JOINTLY AWARDED 1. O’Floinn, Practice and Procedure in the Superior Courts – Benedict Ó Floinn SC, Louis Masterson BL, Bloomsbury Professional.

4. Medical Inquests – Roger Murray SC, Doireann O’Mahony BL and David O’Malley, Clarus Press.

AWARD RECIPIENTS 2024 Irish Law Book of the Year – JOINTLY AWARDED 2021/2022 1. Employment Equality Law [2nd Edition] – Ms. Justice Marguerite Bolger, Claire Bruton BL and Clíona Kimber SC, Roundhall.

Ultan Bannon, husband of the late Attracta O’Regan addresses the gathering the Parchment 13

There in honour of the late Attracta O’Regan were her husband Ultan Bannon, family members and friends

Award for Outstanding Lifetime Contribution to the Legal Profession in Ireland 5. Attracta O’Regan, deceased, formerly a barrister, solicitor, author and Head of Law Society Professional Training & Law Society Finuas Skillnet.

This award was presented to Attracta’s widower Ultan Bannon.

Outstanding Lifetime Contribution to Law and to Society both Nationally and Globally 6. Mary Robinson, to be accepted on her behalf by her niece Jane Bourke, solicitor.

Jane Bourke, solicitor accepting the award on behalf of former President of Ireland Mary Robinson from the Attorney General Rossa Fanning SC 14 the Parchment

DSBA Legal Podcast Award [Inaugural Award] 7. The Fifth Court – Peter Leonard BL, Mark Tottenham BL, Producer/publisher Conall O’Morain.

The DSBA extends its congratulations to all the winners for their outstanding contributions. P

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DSBA Law Book Awards

DSBA President Matthew Kenny with the Fifth Court Podcasters Peter Leonard BL, Mark Tottenham BL, and Producer/ publisher Conall O’Morain

Keith Walsh SC and Martin McCann, CEO of Thomson Reuters

Doireann O’Mahony BL and Ms. Justice Marguerite Bolger

Peter Leonard BL, Louis Masterson BL and Sandra Buckley CEO Bloomsbury Professional

DSBA President Matthew Kenny, Stuart Gilhooly SC, Attorney General Rossa Fanning SC and Susan Martin the Parchment 15

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Summer 2024 dsba.ie Julie Doyle is a solicitor with West Lex Solicitors.

She is a member of the DSBA Parchment committee

Interview

Influencing the Law It’s fair to say that Sarah Irwin, solicitor, is social media savvy.

Perusers of LinkedIn or Instagram have probably read one of Sarah’s insightful posts. A former barrister turned solicitor turned Irish Tech General Counsel turned entrepreneur and B2B Influencer, Sarah has combined her unique skills to become a community builder for inhouse legal professionals in Europe at ITGC, a supportive peer forum to connect innovative in-house lawyers seeking to disrupt the market, knowledge-share, and feel less isolated in their day-to-day work. Julie Doyle managed to catch up with her for a chat about her career to date and discuss her growing business

Sarah, thank you for doing this interview.

Our Parchment readers are always keen to get to know our interviewees. Can you tell us about your background and where you grew up?

Thank you for having me, Parchment! I was born in Ireland and grew up in England. My family are from the west (Mayo) and Dublin. My parents moved to England in the 80s, along with half the country.

We lived on the south coast near Winchester/ Southampton in a nice, quiet town that is a lot like the one you see in The Inbetweeners! I moved back to Ireland 10 years ago and haven’t looked back. It has been a great decade.

Once you finished school you were college bound. Had you a particular career choice in mind. How did you decide upon your chosen degree course?

I loved foreign languages (I speak about five), Europe and learning about new cultures and their history, so I studied European Studies with French and Italian at Portsmouth University. The course was four years including an Erasmus year in Strasbourg, so I jumped at it. I studied European history, politics, philosophy and more and learned about things like the impact of Napoleon and the French Revolution on the entire continent, and its legacy we still see today. I wasn’t

ready to pick a career path and this degree gave me variety (kind of like undergraduates get in the US before they “major” in their specialism).

Following your undergrad in Portsmouth you then embarked on an LLB in the University of London. What prompted you to study law?

I studied “EC law” (as it was known then) in my final year at Portsmouth and the discipline, set of rules and way of thinking resonated with me. I was also ready to commit to a career and I have a lot of lawyers in my family, so it made sense. I also knew that I wanted to move to London, one of the global centres of excellence for law, so it was a few stars aligning really. I would love to see a more US approach to college education where it’s OK to get variety in your “undergrad” and then specialise later.

You were awarded the prestigious Blackstone Entrance Exhibition and the Jules Thorn Major Scholarships to the Honourable Society of the Middle Temple.

What led you to pursue a career as a barrister?

I love talking!! Seriously. I did a few internships at law firms and didn’t like that I didn’t get to argue from the get-go, or even speak – I was expected to keep my head down and photocopy documents (more of an indictment the Parchment 17

of the firms I was at rather than the solicitor profession!). I also have an uncle who is a barrister and always admired his work, and how he worked (selfemployed, advocacy in court etc).

Anyone that knows me knows I’m super nice and friendly, but always the first one to call out a bully or tell them what I think if they’re out of line

You were called to the Bar in 2009 practising in London and the Home Counties. Can you set the scene in London for us during that time? What type of work were you doing?

I was called to the Bar right after Lehman Brothers collapsed and, looking back, that was the start of a bleak time in London (global financial meltdown, the rise of the alt-right / populism, Brexit, antiimmigration). But as with any financial crisis, people started to sue each other more so there was plenty of work for junior barristers e.g. contract disputes, mortgage possessions and bankruptcies. This sounds awful but in fact the majority of defendants were not “good honest” hardworking folks – they were people that got into debt with no intention of paying it back and the majority didn’t show up to court or skipped the country. So, my role was more of a tidy-up operation really, acting for banks and financial institutions in enforcing the masses of debts that piled up during that time.

It’s evident that your extensive career experience has greatly influenced who you are today. Are there any significant insights or memorable experiences from your time as a busy barrister in London that continue to impact you?

Yes – judges giving me (or rather, my instructions) a hard time! I was yelled at a lot (again, not me personally – the state of my brief!), but in a civilised forum. Perhaps you have to know what England is like to understand this – polite fighting. Those years have definitely had a huge impact on who I am today.

Anyone that knows me knows I’m super nice and friendly, but always the first one to call out a bully or tell them what I think if they’re out of line. London is a tough place to live as it’s huge, anonymous and fast moving. I’m definitely tough because of my time there!

In 2014, you made a big change in your life and moved back to Ireland. Was this a difficult decision and what inspired this decision?

It was a very natural decision triggered by two things: I didn’t want to be a barrister or live in London anymore.

I had done five years of grafting in court earning no money and all around me my friends were bailing and cross-qualifying with a law firm or one of the big four, earning lots more money than me and getting a 5-year plan in place and career security. I knew I needed to do something similar, but I didn’t want to do it in London.

I had lived there most of my 20s, loved it, but it was time to downsize and live somewhere less anonymous and gruelling!

For the next six years you worked as a Corporate Associate in some of the larger firms in Dublin and cross-qualified as a solicitor in 2017. How did you adjust to this career transition to private practice?

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Very easily. My very first job was at Matheson – I was hired through an agency along with 39 other barristers/ contract lawyers to work on a huge project, so it gave me access to law firm life but as a contractor. It was a terrific way to soak up how things are done from a distance. I also moved here in November so the festive build up had begun and everyone was in a sociable, good mood. Matheson was great at welcoming us and I got to know tons of amazing lawyers that I’m still friends with today. I went on to work at William Fry (an official ITGC sponsor!), Philip Lee and Maples. Each firm gave me something that has stood to me today.

As a corporate lawyer you were working in the technology sector. What specifically drew you to this sector?

Innovation. And the chance to work with cool founders that want to disrupt and improve how things are done, but need support playing the investment game as they scale and exit. That feeling that you are working in the future on exciting new technology, but through the prism of law.

At what stage did you begin to realise that perhaps private practice was not the career path for you?

I always knew it – I always felt like a square peg in a round hole for a number of reasons. I had been a barrister first, don’t have an Irish accent, didn’t go to Blackhall, didn’t like selling my time. But the world was in financial meltdown, and I wanted a 5-year path with a regular income and career development in a city I was happy living in, so it was a smart move. As I worked more and more with cool founders (especially at Maples), I realised I wanted to work on the inside as a GC at a tech company.

Had you any reservations about becoming an in-house general counsel in circumstances where you were the first legal hire tasked with building out the in-house function from scratch? From my own experience, buyin from the business is key. Did you feel supported in your role?

I had zero reservations – this was a huge opportunity for me to create something of my own at Ireland’s most exciting technology company (Tines). We had five unicorns in Ireland at the time and I knew oldfashioned ways of delivering legal services wouldn’t cut it, so I was able to build and grow a modern legal function leveraging technology, outsourcing and a legal operations strategy to ensure a fast, lean, well-liked legal team. I felt hugely supported in my role – one of Tines’s company values is “soundness” in the full Irish sense of the term so everyone was nice and welcoming and supportive. I am also a huge advocate of crossfunctional collaboration, so I sought out the support and input from internal experts depending on what I was working on. Lastly, I reported to the CEO who is a great leader and mentor (high EQ/low ego and not threatened by strong women).

You found your passion bringing together all of your legal experience as a GC for Tines opening you up to a new entrepreneurial mindset. Is this what prompted you to found

Summer 2024 dsba.ie

Interview

Photography: Bryan Meade

ITGC Consulting Limited? Can you tell us a little about ITGC? Yes, that is exactly what prompted me! Working in rapid scale with disruptive, proactive, growth mindset colleagues really triggered my entrepreneurial DNA. As soon as I joined Tines, I set up ITGC (community for in-house legal teams in Ireland) because I couldn’t find a network of peers here to help me do my best work and feel less isolated (legal teams are the smallest in any business, even giant multinationals). The community grew fast (we have 400 members now) and I loved connecting people and organising events for them. I didn’t realise I was being entrepreneurial until the CEO at Tines pointed it out to me during a performance review and suggested I go off and start my own thing because I had what it would take (turns out he was right!). The community is one branch of my business – I also built a personal brand through sharing content on LinkedIn about the pain points in-house legal teams experience in their day-to-day work, and on how to build a future fit, in-house legal function from scratch at a fast growth company.

This has led me to another revenue stream as a B2B influencer, essentially a partnerships role where I broker sales between legal tech and legal operations companies that want to sell into my audience and the ITGC community here in Ireland and across Europe where I have recently expanded (in cities including Amsterdam, Stockholm and London). I also started investing as an angel and am a venture partner with CircleRock Capital. The investor perspective hugely complements the other work I am doing in the scaleup ecosystem here in Ireland and globally.

For the uninitiated amongst our readers, can you explain what a community builder is? How has the ITGC community grown since inception and what do you do to grow that community?

It’s the process of creating a network of people who share a common interest or goal, so in my case I started off running in-person events to get in-house legal teams based in Ireland into the same room to meet, socialise, share pain points and learn together.

In a business context, it’s a go-to-market strategy many companies use for cultivating a group of loyal customers / advocates who are passionate about your product / services and help you grow your brand and customer base. I did not start out with any commercial intentions – I just wanted to feel less lonely at work and find people doing the same job with the same mindset for legal innovation and running a modern legal team. I expected maybe 5-10 people tops would join me in this, but we now have over 400 members across Ireland. But the most important thing I did to grow the community was to start sharing content on LinkedIn about my experiences building the legal function at Tines, together with hosting free in-person events so members could connect in person.

There are many outdated stereotypical views still perpetrated about the in-house lawyer e.g. it being a default career; can’t cut it in practice; mostly females of a certain age profile; 9-5ers; will only ever say “no” etc. Having spent almost eight

years as an in-house lawyer I have heard them all! How do you change the narrative?

By challenging people about their lazy generalisations and negative, sexist biases – I do this through my content on LinkedIn. On the “department of no” accusation, you have to lead by example and show the rest of the business that you are modern business partner who says “yes, if…” instead of “no” and proactively collaborates with your colleagues to help them achieve their business aims.

Part of your role in ITGC is as a refreshingly honest “content creator” on social media platforms such as LinkedIn/Instagram shining a light on the many issues a GC can face or best practice tips. Do you analyse the generational engagement with your posts or what does your audience engagement indicate for the future of legal inhouse practice?

Thank you for this lovely compliment! Yes, I carefully track how my posts perform and what resonates the most with people, and seek out feedback, to ensure what I’m posting is what people want to see. But I also post from the heart about things I want to share, even if it’s not the most popular topic. I do find in those cases that lots of others feel the same, so I’m always glad to experiment with content and format.

Finally, Sarah, it would be remiss of me not to ask you considering you are effectively Mayo GAA royalty (being the granddaughter of legendary Mayo GAA All Ireland-winning captain Seán Flanagan) what are you going to do with the rest of your summer now Mayo are out?!!

Hahaha! I don’t know! I actually just put my suitcase away after six weeks on the road for ITGC events across Europe and was hoping July & August would be more exciting. I’ll probably just go travelling again! P the Parchment 19

Gillian Dully is a consultant at LK Shields Solicitors LLP and works in the Employment, Pensions and Employee Benefits Department

Employment

Incentivising Employees in 2024 and Beyond With employers facing significant challenges in attracting and retaining key talent when competing against larger companies and businesses with deeper pockets, Gillian Dully looks at these challenges and emerging trends

There are various types of schemes available which can offer tax efficient benefits which employees perceive as attractive and valuable incentive arrangements

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he last four years have been challenging for employees for many reasons. Employees have experienced considerable cost-ofliving increases and continue to be motivated by financial and equity-based incentive arrangements.

The cost-of-living crisis is set against a background of workplace evolution where remote/hybrid working is commonplace.

Employees are attracted to employers that can offer a broad range of benefits and support lifestyle choices. Employees continue to place increased value on a wide range of matters beyond salary such as work/life balance, flexible working arrangements, additional annual leave, health and wellness, diversity, and inclusion.

Employees tend to change employers more frequently than in previous times and employers need to adapt to the ever-changing business landscape if they want to continue to retain key employees and remain competitive.

Whilst some private companies do not consider equity-based remuneration appropriate for their business model, there are a wide range of employee incentive arrangements that an employer can establish, which do not involve the issue of shares to an employee and are worthy of consideration.

Such arrangements provide a financial incentive for employees and avoid the issue of shares to employees in a private company.

Employers with existing incentive arrangements should review their current remuneration and incentive arrangement models and examine whether they are fit for purpose in 2024 and beyond. A background of emerging global trends, changing business environments and evolving work practices may require a change in the type of incentives arrangements that an employer might offer to its employees going forward. Employers should consider exploring new schemes or adapting a current scheme which might be more aligned to the future growth of the business and staff retention objectives.

How can a Private Company Incentivise Employees in 2024 and Beyond?

Conclusion

Employees with no incentive arrangements might consider establishing equity-based incentive arrangements. There are various types of schemes available which can offer tax-efficient benefits which employees perceive as attractive and valuable incentive arrangements. The type and size of the business will influence the suitability of a particular type of incentive arrangement.

Revenue approved share scheme arrangements are tax-efficient, but they are generally unsuitable for private companies because such schemes must be made available to all employees on similar terms. Unapproved schemes do not generally require Revenue approval or equality of treatment of employees and are more flexible for start-ups and small to medium enterprises.

Several issues may need to be considered once an employer has selected the type of employee incentive scheme to be adopted including taxation, any regulatory or compliance requirements, company law, trust law, employment law and equality legislation along with Revenue guidance and practice. Furthermore, a well-designed scheme should address potential pitfalls which may arise during the life of the scheme including share valuations, vesting, take back of shares and the treatment of early leavers and change of control/ realisation events.

Any business considering an employee incentive arrangement should seek professional and taxation advice at the earliest opportunity to ensure it adopts the most appropriate arrangement for incentivising and retaining key talent and minimises potential issues which may arise at a later stage. P

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The Bar of Ireland and the DSBA line up before the start of play at the Leinster Cricket Club

DSBA Triumph at Annual Cricket Event The 27th of June saw Leinster Cricket Club host the annual John F. Buckley cricket match between the DSBA and the Bar Council

T

he match was a tight affair with some fine individual performances on both sides. The outstanding performances on the DSBA side were from two of Beauchamps’ finest cricket players – Maitiú Ó Dónaill made two outstanding catches and Gerry Gallen bowled the Bar’s final batsman out

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with the Bar needing just two runs to win in the second last over.

The spectators and players enjoyed a barbecue and drinks throughout the evening. Many thanks to the DSBA and Bar Council members and players for attending and to Leinster Cricket Club and the Buckley family for their hospitality. P

Summer 2024 dsba.ie Photography: Mark Harrison

DSBA Cricket

Far right: Don Hanley

Left: Richard Stowe and Maitiú Ó Dónaill

Right: DSBA president Matthew Kenny batting Far right: Diarmuid O’Leary and Conor Doyle

Left: Simon Mills, Gavin Miller, Ciaran Mandal, Niall Buckley Far left: Gavin Miller and John Berry

the Parchment 23

Good Conveyancing Practice There has been much attention on the housing crisis and delays around the conveyancing process over the past 12 months. All too often, it seems that the blame for a lot of these delays is placed at the feet of the hard-working conveyancing solicitor. In this article, Áine Gleeson, Chair of the DSBA Property Committee, takes a look at the Residential Conveyancing process and the key points for ensuring that a conveyance goes smoothly

The Vendor Client Over the past few years, several estate agents have become adept at advising vendors to contact their solicitor at a very early stage of the sales process, generally as early as when the house is going on the market. This is obviously a welcome development as all too often in the past vendors would only contact solicitors when the property was sale agreed. As soon as a conveyancing solicitor receives an instruction for a sale they should immediately as part of the initial engagement with the client prepare the following: 1. A letter of authority to take up title deeds and obtain redemption figures from the client’s Lender.

2. Issue the client with the Law Society pre-sale questionnaire.

3. Emphasise to the client the importance for them of gathering paperwork relating to NPPR and Local Property Tax. 4. If not familiar with the title, conduct a quick 24 the Parchment

search on Landdirect.ie and upon discovering that the property is unregistered title advise the client of the requirement to obtain a Land Registry compliant map.

Once the property goes sale agreed, assuming all the pre-sale preparatory work has been completed, contracts should issue within a couple of days. At this point it is no harm to advise a vendor client of the target closing date but also of potential delays or pitfalls in order to best manage expectations.

We should also remind the vendor client to keep in touch with the auctioneer on a regular basis, as the auctioneer is the one party who can speak directly to the purchaser.

The Purchasing Client A purchasing client often will only contact you when they have gone sale agreed and paid a booking deposit on the property. As soon as a purchasing client gets in touch, a solicitor should immediately establish the position of that client. Are they

Summer 2024 dsba.ie Áine Gleeson is Chair of the DSBA Property Committee. She is a partner at AMOSS Solicitors

cash buyers? Are they first-time buyers with loan approval? Are they trading up or down?

A cash buyer needs to be advised at an early stage as to the likely timing for payment of the balance 10% deposit together with closing date when the balance purchase monies will be due bearing in mind that funds may be on short to mid-term deposit accounts. The first-time buyer or any other class of buyer with a mortgage will need to be advised to get final mortgage approval in place at the earliest opportunity. Quite often this will mean explaining the difference between an approval in principle and the formal loan offer particularly to the first-time buyer client. The purchasing client who is in a chain of transactions will be trickier and it is worth having a discussion with the client as to how they want to time the transactions, i.e. do they want both transactions to happen on the same day, or are they happy to proceed with the sale of their existing property a couple of days or weeks in advance of the purchase closing date.

Conveyancing

Pro-active Communication is Key Reaching out to your client on a regular basis with updates (even in circumstances where there are no updates) will reassure your client that their transaction is important and that you are on top of it. It is also worth considering, particularly when acting for a vendor client, keeping the auctioneer advised of various milestones, e.g. the sending out of contracts, exchanging of contracts, the setting of the closing date etc.

All practitioners are aware that delays in the conveyancing process lie with multiple stakeholders: the banks, the Land Registry, surveyors, solicitors, to name just a few.

Understandably, we can all become frustrated at these delays, but it is worth remembering and indeed reminding ourselves that at all times we should be collegiate, responsive and make every effort to maintain an open dialogue with our clients and colleagues alike. P

Reaching out to your client on a regular basis with updates will reassure your client that their transaction is important and that you are on top of it the Parchment 25

Gearoid Carey is a member of the DSBA Commercial Law Committee. He is a partner in the Commercial Litigation team at Mason Hayes & Curran LLP

Litigation

Cost Consequences for Mediation Act Non-Compliance The High Court in a recent judgment reduced the costs payable to plaintiffs whose solicitors had not advised them to consider mediation. Gearoid Carey examines the case and its implications

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s those with contentious practices should be aware, Section 14 of the Mediation Act 2017 imposes obligations on solicitors to advise clients to consider mediation before commencing proceedings. In particular, the provisions require the solicitor to give the client information about the benefits of mediation and the advantages of resolving their dispute without litigating. If proceedings are to be commenced, the Act further requires that a statutory declaration sworn by the solicitor confirming compliance with those obligations should accompany the originating document commencing the proceedings. In terms of express restraints, the Act empowers the Court to adjourn the proceedings to facilitate provision of the declaration, which power the Courts have exercised.

However, in a recent High Court decision, Byrne & Ors v Arnold [2024] IEHC 308, Judge Kennedy imposed a costs penalty arising from the plaintiffs’ solicitor’s failure to comply with the Section 14

26 the Parchment

obligations before commencing proceedings. The decision arose in respect of a costs hearing regarding two interlocutory motions. Although the plaintiffs had prevailed, to mark his displeasure with the statutory non-compliance, he imposed a 5% reduction on the party and party costs he was otherwise prepared to order.

In justifying the position adopted, Judge Kennedy stressed that compliance with the obligation – which he described as “not unreasonable or burdensome” – assisted the client in making an informed decision to litigate and he noted that lawyers acting in their clients’ best interests should advise their clients about litigation alternatives. Furthermore, he opined that Section 14 compliance was in the public interest as well as in the individual client’s interest. He also rejected the arguments put forward for non-compliance, including: • In respect of the contention that mediation was not appropriate at that time, he said that even if that were the case, “a seed is planted” and, since the chances of engagement by the defendant were not zero, even a low possibility of willingness to engage justified the plaintiffs considering it; and • As to a perception that proposing mediation may “show weakness”, Judge Kennedy observed that if all disputants adopted that stance, no cases would ever settle and, in any event, “sophisticated litigators are less inclined to consider nuanced willingness to negotiate or mediate as a sign of weakness”.

He ultimately concluded that failure to comply with Section 14 was a relevant consideration when exercising the statutory discretion as to costs and, taking everything into account, he ruled that a “relatively modest” 5% reduction to the costs award he would otherwise make was appropriate. Quite apart from the incentive the ruling has to further promote Section 14 compliance, practitioners should be aware that Judge Kennedy initially considered imposing a 1015% reduction. It is also worth bearing in mind that he issued a warning that “courts may be less lenient in future”.

Therefore, it is entirely possible that more significant cost consequences may be imposed for future instances of Section 14 non-compliance. P

THE DUBLIN SOLICITORS BAR ASSOCIATION CONTINUING PROFESSIONAL DEVELOPMENT SEMINAR Complaints under the Legal Services Regulatory Authority 5 Years On THURSDAY

26th SEPTEMBER 2024 VIA WEBINAR 2.00pm to 5.00pm • Introduction, history and Overview of Complaints Process: Brian Doherty, Chief Executive Officer of the Legal Services Regulatory Authority (LSRA).

• Pre-Admissibility Process and Admissibility Decisions: Eleanor Carmody, Head of Complaints and Resolutions Unit, LSRA. • Mediation and the Resolution of Complaints: TBC • Complaints Determined by the LSRA: Paul McGovern, LSRA Complaints and Resolutions Officer.

• Complaints and Review Committees: Tony Watson, LSRA Head of Complaints, Investigations and Resolutions Department.

• Legal Practitioners Disciplinary Tribunal (LPDS): Kay Lynch Registrar of the LPDS. • Enforcement of LSRA Determinations and Directions: Alison McIntyre, LSRA Head of Legal Services, Levy and Registration Department.

• Lessons and Themes 5 Years On: Brian Doherty, Chief Executive Officer of the LSRA. Fees: € 165.00 Member € 275.00 Non-Member CPD: 3 Hours Practice Management Book your place by contacting:Maura Smith – Tel.: 01 6706089 – E-Mail: maura@dsba.ie – Web: www.dsba.ie

Important Changes to Circuit Court Rules Kevin O’Keeffe sets out an important development in mortgage litigation where the 12-year statute rule has been removed on Decrees and Court Orders

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n the 20th of March 2024, the Circuit Court Rules Committee formally amended the previous provisions of Order 36 Rule 9 and Order 36 Rule 10 of the Circuit Court Rules to remove the longstanding reference to the 12-year limit regarding the enforcement of Court Orders.

This is a significant development that will have major consequences for financial institutions regarding the amount of time that they may have available to enforce an Order for Possession that has been made by the Circuit Court against respective borrowers.

The Old Rules: Pepper v Doyle As affirmed by the recent High Court decision of Pepper v Doyle [2023] IEHC 662, the previous wording of Order 36 Rule 9 and Order 36 Rule 10 provided that an Order for Possession made within the jurisdiction of the Circuit Court remained in force for a 12-year period. The previous rules stated that: Rule 9: “Every decree of the Court, and every judgment in default of appearance or defence, shall be in full force and effect for a period of 12 years from the date thereof, and an execution order based on any such decree or judgment may be issued in the Office within the said period, but not after 28 the Parchment

the expiration of six years from the date of such decree or judgment without leave of the Court. An application for such leave shall be made by motion on notice to the party sought to be made liable.”

Rule 10: “If, at any time during the period of 12 years, any change has taken place, by death, assignment or otherwise, in the parties entitled or liable to execution, the party claiming to be so entitled may apply to the Court on notice for leave to issue execution, and the original decree or judgment may be amended so as to give effect to any order made by the Court on the application.”

This previous position did not allow for any attempts at engagement by financial institutions or any moratoriums on enforcement of security to be taken into account and once the 12-year period had passed, any Orders for Possession made by the Circuit Court simply became unenforceable.

The New Rules: Start v Hendrick

However, as per Statutory Instrument, S.I. No 107 of 2024, the above provisions have been amended and the reference to the 12-year rule has been removed to now state as follows: Rule 9: “An execution order based on any decree of the Court or judgment in default of appearance or defence may be issued

Summer 2024 dsba.ie Kevin O’Keeffe is a solicitor in the Asset & Debt Recovery team at Lavelle Partners LLP

in the Office within six years from the date of such decree or judgment. After the expiration of six years from the date of such decree or judgment, an execution order may be issued with the leave of the Court. An application for such leave shall be made by motion on notice to the party sought to be made liable.”

Rule 10: “If, at any time after the making of a decree or judgment in default referred to in rule 9, any change has taken place, by death, assignment or otherwise, in the parties entitled or liable to execution, the party claiming to be so entitled may apply to the Court on notice for leave to issue execution, and the original decree or judgment may be amended so as to give effect to any order made by the Court on the application.”

Importantly, the new Circuit Court rules also establish consistency with the current High Court position on this matter as per the decision of Start v Hendrick [2023] IEHC 11, which clarified that Plaintiffs who had not executed Orders as per the 12year period set out in Section 11 (6) (a) of the Statute of Limitations Act 1957, were not precluded from seeking leave to execute an Order for Possession despite the expiry of the 12-year limitation period.

The recently amended Order 36 Rule 9 and Order 36 Rule 10 of the Circuit Court Rules are a welcome development for Plaintiffs in the area of Mortgage Litigation.

Litigation

The new rules strike a balancing act in allowing borrowers in financial difficulty who have been subject to Orders for Possession against their property sufficient time to achieve resolution.

They also remove the potentially punitive 12-year element contained in the previous rules for financial institutions in enforcing their security who may have been unfairly prejudiced for attempting engagement with borrowers or by reason of moratoriums such as those imposed by the Covid-19 pandemic.

Conclusion It is anticipated that the new rules will create a more balanced regime which has the effect of encouraging financial institutions to engage with borrowers instead of prematurely proceeding with execution due to time constraints. It also provides fairer provision for the enforcement of securities in circumstances where attempted engagement from such institutions has not been reciprocated by the relevant borrowers and/or where there have been external factors which have prevented the financial institution from enforcing their security.

The above is of course subject to the crucial caveat that the delay in executing such Orders is adequately explained by the respective financial institution once the initial six-year period for execution (during which leave of the court to execute Court Orders is not required) has passed. P

The new rules strike a balancing act in allowing borrowers in financial difficulty who have been subject to Orders for Possession against their property sufficient time to achieve resolution

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The Dáil Revolutionary Courts Brian Walsh looks back 100 years to the Dáil Revolutionary Courts and the role they played in Ireland between 1920 and 1924

W

hen we think of the War of Independence, we usually associate it with the flying columns’ ambushes on Royal Irish Constabulary (RIC) barracks or the shootouts with the Black and Tans in the more rural parts of Ireland. These acts contributed to Britain agreeing to a truce, which paved the way for the creation of the Irish Free State with the signing of the Anglo-Irish Treaty. A less studied aspect of the War of Independence is that republicans established an alternative court system with the aim of undermining and replacing the jurisdiction of the British courts in Ireland.

These republican courts (also known as the Dáil Courts) replaced more limited arbitration courts, and derived their legitimacy from a decree of the First Dáil on the 29 June 1920 which outlined that “the establishment of Courts of Justice and Equity be decreed and the Ministry be empowered when they deem fit to establish Courts having criminal jurisdiction” – see further, James Casey, ‘Republican Courts in Ireland: 1919-1922’ (1970) 5 Irish Jurist 321 (‘Casey 2’). For context, the First Dáil convened in 1919 in the Mansion House in Dublin. It consisted of members of Sinn Féin whose leader was Éamon de Valera. Incidentally, de Valera could not attend the First Dáil as he was imprisoned in England at the time. Various Sinn Fein members had been elected on an abstentionist platform to Westminster but instead proceeded to establish a revolutionary parliament and declared an independent Irish Republic,

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which in no doubt drew inspiration from both the American Revolution and French Revolution.

The structure of the newly formed Dáil Courts consisted of a Supreme Court which sat in Dublin and had jurisdiction over the whole island, the District Courts (which were based on the parliamentary consistencies) and the Parish Courts (which were based on Catholic parishes). There were also Circuit Court judges appointed whose roles were to preside over the Circuit sittings of the District Courts. The Dáil Courts were both civil and criminal in nature and in an attempt to differentiate themselves from the existing British court system, litigants were permitted to cite precedents and legal codes from both historic and non-British legal systems, including the Irish Brehon Law, the Napoleonic Code and the Code of Justinian (that was used in the Byzantine Empire).

James C. Meredith, who was a judge of the Dáil Supreme Court, published an article later in life stating that he had in fact applied the Brehon Law in a case in County Cork, where a woman sought compensation from the man who had fathered her child and requested that an order be granted mandating him to pay the expenses for the costs of raising the child. As expected, at the time there was no appropriate remedy under the common law for the payment of maintenance nor was there any equivalent award damages available for breach of contract in this context. However, as mentioned above, in awarding the woman compensation for the expenses she incurred for raising her child, Meredith cited an

Summer 2024 dsba.ie Brian Walsh is a practising solicitor with Beauchamps LLP. He has a keen interest in 20th century Irish history as well as the evolution of the courts system in Ireland

old Irish Brehon Law. Apart from this example, such deviations from the common law do not appear to have been frequent.

There was no requirement for judges of the Parish Courts or the District Courts to have any formal legal training. However, Meredith and Arthur Cleary who were appointed to the Supreme Court had distinguished legal careers, but it must be noted that there were many obstacles to finding qualified persons to agree to become judges under the Dáil Courts system. For example, the Bar Counsel passed a resolution that it was “professional misconduct on the part of any member of the Bar to appear before such a tribunal”.

In terms of popular culture, the Dáil Courts are depicted in Ken Loach’s film “The Wind That Shakes the Barley”, which stars Oscar winner Cillian Murphy.

In this, albeit a fictional scene, a wealthy businessman, Mr Sweeney, seeks to be repaid with interest for a loan he provided to a local woman Mrs Rafferty. The court in the end orders Mr Sweeney to pay damages to Mrs Rafferty for charging interest of 500 percent and he is then taken away by who we presume are the republican police. Interestingly, Teddy O’Donovan (who is a local a republican leader) interrupts the judge after the ruling, arguing that because Mr Sweeney will now have to pay a sum of money to Mrs Rafferty, Mr Sweeney will no longer have sufficient funds available to continue to fund the purchase of arms by the local republicans. This scene depicts an interesting social observation of revolutionary Ireland. On one hand, Mr Sweeney was ordered to

pay damages to Mrs Rafferty for charging exorbitant interest rates. However, by enforcing this judgment, it also meant that there would be less capital available to the revolutionary cause to fund the struggle for independence.

Those who have seen the movie will also remember that the judge who presided over the hearing was a woman. Unlike the existing British court system at the time, the Dáil Courts can be seen through a historical prism as having progressive elements. Notable members of the Dáil Courts who were women included Kathleen Clarke, Hanna Sheehy-Skeffington and Maud Gonne MacBride. Similarly, it must also be noted that Meredith was a member of the Church of Ireland community and later the Society of Friends so the composition of the judges of Dáil Courts also highlights some level of religious diversity.

One of the more colourful legal appointees was Circuit Court Judge Diarmiud Crowley. After retiring from the civil service, he was called to the Irish Bar. He was appointed to hold Circuit Court sittings in both Dublin and outside of Dublin. Despite the British authorities outlawing the Dáil Courts, Crowley continued to resist any such attempts by the RIC to prevent sittings of the Dáil Courts as he continued to preside over hearings. Ultimately, he was arrested and was sentenced to two years’ hard labour by a British Military Court. Crowley was also stripped of his pension that he received from the civil service.

Crowley was later released and he continued to hold hearings of the Dáil Court which exemplifies his

Legal History

There was no requirement for judges of the Parish Courts or the District Courts to have any formal legal training

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Legal History

Even though the lifespan of the Dáil Courts were short lived, they provide us with an insight into how republicans, at the time, were able to effectively administer justice by way of an alternative revolutionary court system courage despite being previously incarcerated.

Crowley also deserves further attention because of his decision in relation to a habeas corpus hearing brought before him on the 20 of July 1922, which would ultimately be a significant contributing factor in the demise of the Dáil Courts. For context, the antitreaty IRA occupied the Four Courts in the spring of 1922 and intense fighting broke out between the antitreaty IRA and the Provisional Government’s forces, led by General Michael Collins and General Richard Mulcahy. The rationale of the anti-treaty IRA for taking control of the Four Courts was that, amongst others, the signing of the Anglo-Irish Treaty (which acknowledged that Northern Ireland could opt-out of an all-island republic) was an act of treason because such concession was repugnant to the First Dáil which had declared an all-island independent republic. This is despite the fact that in June of 1922 in Southern Ireland (as it was legally named at time, under the Government of Ireland Act 1920) a general election was held and pro-treaty Sinn Féin had received the support of the majority of the Irish public by winning the most seats in that general election.

The habeas corpus application which Crowley presided over was brought by Count Plunkett on behalf of his son, George Oliver Plunkett, who was imprisoned by the Provisional Government for his role in the occupation of the Four Courts. Crowley granted an order requiring the Minister for Defence, Richard Mulcahy, and the Governor of Mountjoy Prison to appear before his court to account for the reasons for the prisoner’s detention. On 25 of July, Crowley received a letter from the Minister of Home 32 the Parchment

Affairs informing him that the decree establishing the Dáil Courts (which was passed by the First Dáil) had now been rescinded, save for the Parish and District Courts outside of Dublin. In a tenacious move, Crowley then ordered the arrest of General Mulcahy and the Governor of Mountjoy Prison. This was not a wise decision as Crowley was then picked up by the CID (the plain-clothed Free State police force) and was detained at Wellington barracks for a period of time (where Griffith College Dublin is now located).

Crowley was later released and, ironically, was offered a role in the commission which was in charge of the winding up of the Dáil Courts but, as predicted, he refused.

Even though the lifespan of the Dáil Courts were short lived, they provide us with an insight into how republicans, at the time, were able to effectively administer justice by way of an alternative revolutionary court system. When the Dáil Courts were wound down, a commission was set up whose task was to adjudicate on and register more than five thousand judgments of the Dáil Courts which were being heard when the Dáil Courts were wound down. Given the large number of outstanding cases, it was clear that a significant percentage of the Irish population viewed the courts as legitimate because they sought justice through that forum. Therefore, it is incumbent on today’s legal profession in Ireland to also acknowledge the legacy of the Dáil Courts when also reflecting on more than a century of courts and the enactment of the Courts of Justice Act 1924 which set up the Irish Courts system that is largely in existence today. P

MEMBERSHIP Summer 2024 dsba.ie

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34 the Parchment

Summer 2024 dsba.ie Kevin O’Higgins is principal of Kevin O’Higgins Solicitors. He is a former President of both the Law Society and the DSBA. He is a former editor of the Parchment

Interview

The Noble Champion Kevin O’Higgins met with former President of the Law Society and now Dundrum-based solicitor John Costello who reflects on a legal career with many achievements

J

ohn Costello’s professional CV should be a case study for law students contemplating a legal career, and particularly for those aspiring to a career in the solicitor’s profession.

Five law firms together with several years service with both the Parole Board, and Mental Health Commission, to achieving high office as President of the Law Society, have all collectively marked him out as a very special lawyer. One prepared to embrace new opportunities along the way and coming out the other side as a better lawyer, ready for the next opportunity.

Now, our readers will know that The Parchment is not Phoenix. We take a benign disposition towards all our interviewees. We favour positivity and good karma as there’s enough of the other out there. But genuinely, John Costello is a good guy – one of the best. Decent, empathetic, self-deprecatory, excellent sense of humour and most particularly carries a strong sense of social justice and inclusion.

Perhaps the latter trait spun from his crusading father Declan, for long a Fine Gael politician (later President of the High

I believe that mediation in family law ought to become more of a feature and not just a boxticking at the start of proceedings – rather it should be something that requires parties to consider in the runup to the trial

Court) and author of The Just Society which was groundbreaking at the time. But borne into such a household where his grandfather had been Taoiseach and who (unlike Dev) declared the Republic, was it any surprise that John started his legal career with McCann FitzGerald?

In fact, the founding partner, Alexis FitzGerald, was his uncle through marriage.

John trained there and worked post qualification for over 10 years in the Private Client and Probate areas. He found the ethos of the firm to be highly professional and the people that he worked with both decent and courteous. He recollects being asked by his uncle Alexis to look after an elderly widow who had just lost her husband. “There’ll be no money in it for the Firm – but we’ll adopt the Robin Hood philosophy.”

But John was never fired up by the desire to chase fees. Unlike the rest of us, the mercenary side of practice was never his driver. Perhaps that’s why he chose not to become a partner in the firms he worked in. For him it was more about the work and the clients. Let the bosses worry about the fees. the Parchment 35

In my 10 years on the Board 80 prisoners were granted Parole. I enjoyed this work very much and even completed a Master’s in Criminology to improve my participation in the whole Parole process After 10 years in McCann’s, he was delighted to join the then Eugene F Collins (now Addleshaw Goddard). “Eugene F’s” were a venerable firm steeped in the fabric of legal life and renowned for excellence and the launching pad for many great lawyers.

John was to spend 20 years there where he headed up its Private Client Department specialising in probate, attorneyship and family law.

John became a regular feature on the lecture circuit and enjoyed that aspect very much. He had been part of a Law Society Committee which sought to persuade the Department of Justice officials that the 1996 Powers of Attorney Act was not fit for purpose in the context of Assisted Care Decisions, a deficiency which has only been corrected recently.

It was during this period also that found him spearheading the groundbreaking Chamberlain case. This was the heart36 the Parchment

wrenching “right to die” case where John’s client, Margaret Chamberlain, sought, against all the odds, to achieve solace for her daughter Lucy, who at the age of 22 had suffered a catastrophic medical misadventure and which rendered her, for the next 23 years of institutionalised existence, in a permanent vegetative state.

The case went full fight all the way to the Supreme Court, being fought tooth and nail by both the medical professions and the State. John’s client Margaret was deeply religious and consulted theological scholars and as a result was satisfied that allowing Lucy to die by withdrawing the tubal nutrition she was receiving was permissible and within her own religious beliefs. With John at her side and a stellar legal team of Peter Charleton, Marguerite Bolger, and none other than Paddy McEntee, they secured a resounding success from the Supreme Court. The patient Lucy was then

released and enabled to die peacefully at home – just eight days later.

John’s firm were delighted to encourage him to stand for election to the Council of the Law Society and so continue a tradition commenced by Anthony Collins, one of its founding families. John was elected on the second attempt. “I really enjoyed my 20 years or so with the Law Society and was honoured to have become President in 2011. If I’m honest though, I would admit to getting more out of the various committees that I worked on. The Council itself, for me at any rate, was becoming too political.”

He enjoyed the work in (the then) Eugene F Collins – particularly the family law, attorneyship matters and Wards of Court.

He liked less tax-planning and strategising how to save tax for wealthy clients in their succession planning. “I believe that mediation in family law ought to become more of a feature and not just a box-ticking at the start of proceedings – rather it should be something that requires parties to consider in the run-up to the trial.”

But of course, John’s itchy feet were getting to him again and after 20 happy years in EFC it was time to move on. He joined Beauchamps where he continued to do the same sort of work as previously – but had to adapt to different work practices as

Summer 2024 dsba.ie

Interview

Photography: Bryan Meade

the office was open plan. “It took a lot of adjusting to – despite the breakout rooms.”

He had also been asked by the Minister for Justice – entirely out of the blue, to chair the Parole Board. “I had no idea where the idea came to the Minister to consider me for it. I knew little about the criminal law/justice system.” Yet he immersed himself in the work and found great professional satisfaction in it. In fact, so deeply did he involve himself in the work that at his own expense he became a UCD student again doing a Master’s in Criminology – just for fun! He served as chair for two terms and became the public face of the Board, whose remit to the general public is probably greatly misunderstood. Yet he quotes the Greek word Metanoia which acknowledges a person's change of heart and mind meaning that everyone is capable of redemption and rehabilitation.

“I was appointed Chair of the Parole Board from 2011-2021. The Board had jurisdiction to review the sentences of Life Sentenced Prisoners ('Lifers'), who amounted to about 400 in number.

“In order to consider a recommendation for parole, it was essential to review up-todate reports from a prison psychologist or probation officer. In addition, an up-to-date

report from a psychiatrist might be required in certain cases.”

He makes the point that most Lifers served about 20 years in prison before they were recommended for parole. “No prisoner was considered for parole unless he/she had served an appropriate sentence and was reported as having a low risk of reoffending in the professional reports.” He says that they made regular visits to all the prisons and encouraged the prisoners to work with addiction counsellors and psychologists to lower their risk of reoffending.

“In my 10 years on the Board 80 prisoners were granted Parole. I enjoyed this work very much and even completed a Master’s in Criminology to improve my participation in the whole Parole process.”

After the Parole Board, and while still working with Beauchamps, he took on other challenges and signed up for Mental Health Commission work and built up a practice in that area over a 6-year period. “I found it very rewarding yet harrowing. I realised that without buy-in from other family members, in the more serious cases, it would be more challenging to achieve an outcome for the mental health patient.”

Perhaps, it was the scourge of billable hours again, but after seven years in Beauchamps, it was time to look again at

pastures new. And so, our hero hooked up with Orpen Franks where he was well looked after – essentially carrying his own client workload under the Orpen Franks umbrella. After eight years there and staring retirement in the face he upped sticks again, but not to retire – far from it. Since January of this year John has been working alongside an ex Beauchamps colleague Felix McTiernan who heads a boutique firm in Dundrum called Noble Law. What new venture awaits John Costello?

He’s an enthusiastic tennis player in Fitzwilliam where he enjoys the company and repartee associated with the Club’s activities. He enjoys travelling, and still supports his childhood team Coventry FC. He’s also become a member of the bereavement group in his parish Church in Donnybrook. The clergy can no longer cover all bases, and more and more the laity are being asked to play their bit. John assists the team in attending to the various funeral observances, including graveside prayers and remembrances.

So perhaps the takeaway for the young law student, or for any of us crusty lawyers, is to never stop learning, be prepared to take on new opportunities, stick with what you love, and follow your heart. John Costello – this is your life! P the Parchment 37

Left: Tom Collins, James Malone & Martin Collins Far left: Stephen Kenny, Kevin Kenny & Matthew Kenny

DSBA Golf Outing The DSBA Golf Society held an outing at Milltown Golf Club on the 27th June 2024

T

he Society is open to all members of the DSBA and their guests and our outings provide a fun and relaxing way of meeting with colleagues outside of the work environment. If you would like to join the DSBA Golf Society and enjoy some outings later in the year, contact Eamonn Shannon on 01 5397231. P

38 the Parchment

Summer 2024 dsba.ie Photography: Mark Harrison

DSBA Golf

Right: Daire Murphy, Shea Cullen & Stephen Fleming

Left: Vicki Robinson, Colleen O’Neill, Maureen Collins & Mary McAlinden

Right: Ken Knightly, Eamonn Shannon & Michael Knightly Far right: David O’Brien, Danny O’Connor & Derek Byrne

Left: Richie Bennett, Graziano Romeri, Hugh O’Neill & David Walley Far left: Emer O’Malley, John O’Malley & Aifric O’Malley

the Parchment 39

Recent Landlord and Tenant Case Law Ruth Cannon BL says that the past two years have seen interesting new caselaw on landlord and tenant law. Here she explores a number of these cases, starting with the topic of recovery of rent which has yielded some of the most interesting decisions

S

ome of these disputes, in particular Footlocker Retail Ireland Ltd v Percy Nominees Ltd [2024] IECA 65, arose due to business closure during the COVID pandemic. In this case, the operator of a footwear and clothing store in Dublin's Grafton Street argued, by way of defence to a claim for recovery of rent, that its lease had been “partially” frustrated by having to close its store due to the pandemic lockdowns. A comprehensive High Court decision of O’Moore J rejecting any such defence was recently upheld on appeal. The Court of Appeal, in a judgment delivered by Barniville J, held that any concept of partial frustration, whereby a lease or other contract could be frustrated for a period of time and revived when that period was over, was not only conceptually impossible as a matter of principle, so as to do “violence to the fundamentals of the doctrine” of frustration, but was also entirely contrary to well-founded authority, including decisions of a number of High Court judges and case law from other jurisdictions.

The 2023-4 period also provided useful clarification of the law on set-off and rent reduction agreements.

In Propmaster Ventures Ltd v Fun Galaxy Ashbourne Ltd [2022] IEHC 731 a tenant opposed a landlord’s application for summary judgment in respect of rent on the basis of a prima facie defence arising from financial loss allegedly suffered by it due to the landlord’s failure to carry out agreed works. The High Court (Hyland J) gave judgment against the tenant,

40 the Parchment

holding that there could be no such defence where the lease itself had specifically stated that there could be no set-off, deduction or counterclaim in respect of the payment of rent, stating that: “[i]f there is no possibility of set-off at the plenary hearing, then it would be futile to send a matter otherwise appropriate for summary judgment to plenary hearing to allow a counterclaim to be heard and determined. In other words, the concept of a counterclaim as a defence is premised on the existence of a possible set-off. Where the parties have by contract expressly excluded the possibility of a set-off or counterclaim, a court should apply the provisions of the contract assuming there is no doubt as to the validity of the contractual provision and should refuse set-off.”

The learned trial judge further stated that she would, in any event, have refused to send the case to plenary hearing where the loss alleged had not been quantified in any way, and a claim in respect of same was being concurrently litigated in the Circuit Court.

A further rent-related issue which fell for consideration in Egerton v Edgeform Metals Ltd [2023] IECA 119 was the question of when undertakings given by a landlord to accept a rent reduction, without receipt of any consideration in return, could nonetheless estop that landlord from enforcing a claim for the full amount of rent. In Edgerton, a tenant pleaded an alleged verbal rent reduction agreement by way of defence to a summary summons for rent.

Adopting the view that the tenant had satisfied the threshold of arguable defence, the High Court (Barr J)

Summer 2024 dsba.ie Ruth Cannon is a barrister and Lecturer in Law at TU Dublin

sent the matter to plenary hearing. The Court of Appeal, in a judgment delivered by Binchy J, allowed the appeal and gave judgment against the tenant.

Barr J had relied on a previous decision of Laffoy J in The Barge Inn Ltd v Quinn Hospitality (Ireland) Operation 3 Ltd [2013] IEHC 387, which had held that an agreement to abate rent, unsupported by consideration, could nonetheless be enforceable under the doctrine of promissory estoppel. Binchy J, on appeal, distinguished Edgerton from Barge Inn on the basis, firstly, that there had been no dispute in the latter case as to whether an agreement to reduce the rent had been entered into between the landlord and tenant and, secondly, that in Edgerton, no evidence had been put forward of any reliance by the tenant to their detriment on the alleged agreement, other than the fact of their having paid the reduced rent, saying that proof of detriment on foot of an alleged rent reduction agreements, was “not a trivial detail, or something that could readily be overlooked…” but rather “an indispensable ingredient in the defence.”

The final case in this quartet of rent decisions was another Court of Appeal judgment, Leinster Leader Ltd (in Liquidation) v Formpress Publishing Ltd [2024] IECA 15, which involved a tenant appeal against an order for summary judgment granted ex tempore by Owens J in the High Court, the basis of the appeal being that the tenant had a prima facie defence due to the landlord having failed to mitigate its loss by re-letting the premises. The Court of Appeal, in a judgment delivered

by Haughton J, allowed the appeal in part, so that

Landlord and Tenant

the question of landlord obligation to mitigate loss could be further considered at plenary hearing. While acknowledging that “[i]t is common case that there is no Irish authority directly on point”, Haughton J felt that: “[t]here is at least an argument, based on authorities from… Commonwealth jurisdictions... that could lead a court at plenary hearing to take the view that there is a duty on a landlord, where the tenant abandons possession, to take possession and re-let in order to minimise losses.”

It will be interesting to see what decision is reached on this issue at the full hearing of the proceedings.

The application of general contract law principles to the law of landlord and tenant also arose in two cases involving interpretation of leases, both involving exclusivity or ‘non-compete’ clauses. In Dunnes Stores v Dafora [2024] IECA 37, a lease of a unit in a retail park in which Dunnes was the anchor tenant contained a clause prohibiting a tenant from selling “any food, food products or groceries.” The issue before the Court of Appeal related to the interpretation of the term “groceries”, which Sanfey J in the High Court had held was not confined to food products and included nondurable consumable household products which were purchased frequently such as healthcare products, household healthcare products, household and cleaning products, pet care and pet food, bathroom toiletries, hair care products, oral care products and other toiletries, detergents, washing powder, cleaning products and materials, shower gels, deodorants, shampoos, cosmetics, toothbrushes, toothpaste, kitchen towel and toilet rolls.

Where the parties have by contract expressly excluded the possibility of a set-off or counterclaim, a court should apply the provisions of the contract

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Landlord and Tenant

In agreeing with this interpretation, the Court of Appeal (Haughton J) upheld the trial judge’s reliance on the principles of interpretation laid down in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 A.E.R. 98 whereby the meaning of words in an agreement is determined by reference to what a reasonable observer looking at the agreement as a whole and familiar with its background would have understood the parties to mean by those words. Applying these principles, Sanfey J had found that the parties did not suggest or discuss the definition or classification of “groceries”, but that Dunnes’ acceptance of the anchor tenancy was based on it not having to compete in respect of its core trading activities, including its substantial trade in non-food items of a non-durable consumable nature, and that the term “groceries” must accordingly be understood as intended to include such items.

The interpretation of non-compete clauses also arose in Rexbay Ltd v Paul McCann [2024] IEHC 562, where a side letter supplemental to a lease prevented the landlord from granting a lease to coffee chain stores with coffee as their primary product. The landlord subsequently demised adjacent premises to Handprint, a coffee outlet selling speciality coffees to the trade. The High Court (Stack J) found that this was a breach of the exclusivity clause, as coffee was Handprint’s lead product, and awarded damages of €116,518.00 against the landlord.

Statutory landlord and tenant principles also found consideration by the Courts during this period.

Cambervale Ltd v Westside Shopping Centre Ltd [2024] IEHC 61 involved a tenant application under Section 42 the Parchment

66 of the Landlord and Tenant (Amendment) Act 1980, which precludes a landlord of a tenement from unreasonably withholding consent to an assignment by their tenant. The premises in question were dilapidated premises in a shopping centre which, although having permitted user as a licensed premises, had not recently been used as such. The tenant contracted to sell its interest to a purchaser who intended to subsequently apply for consent to use the premises as a community centre. The lease required landlord consent to assignment, but the landlord withheld such consent.

In so doing, the tenant argued, the landlord had acted unreasonably and in breach of Section 66.

The High Court (Simons J) applied Wanze Properties (Ireland) v Mastertron Ltd [1992] ILRM 746 to conclude that the landlord’s refusal of consent was not unreasonable as it was consistent with good estate management, having regard to the fact that, on the basis of the information provided to the landlord by the tenant, the proposed community centre use would involve dead frontage. Per Simons J, it was reasonable for a landlord to take into account, when deciding on whether or not to grant consent to assignment, the use to which the assignee proposed to put the demised premises, even if this change of use would have to be the subject of a separate application to the landlord in due course: “The question of whether or not the withholding of consent to an assignment is unreasonable is fact specific and the answer will depend on the particular circumstances of the individual case. As a statement of general principle, however, it can be said that it will, in certain instances, be reasonable for a landlord to withhold consent to an assignment in circumstances where there would be reasonable grounds for withholding consent to the change in use which the proposed assignee intends to make. Here, the proposed assignee has frankly admitted that it will seek to sell on the demised premises in the event that the intended change in use is frustrated, whether by the refusal of consent under the lease or the refusal of planning permission. The landlord is entitled to have regard to this fact in deciding whether to consent to the assignment.”

Simons J also rejected any suggestion that the landlord, who had previously approached the tenant regarding acquiring the lease, might have had an ulterior motive in refusing consent, stating that: “On the facts of the present case, the Tenant had publicly advertised the demised premises for sale. Both parties to these proceedings are commercial entities and each are part of a group of companies which have extensive property holdings. In such circumstances, there can be no principled objection to the Landlord having approached the Tenant to inquire as to the purchase price. It might well have been possible for the parties to reach a mutually satisfactory arrangement in relation to the surrender of the demised premises. Of course, it would not be permissible for the Landlord to threaten—directly or indirectly—to refuse consent to an assignment to a third party as “leverage” to acquire the property at an undervalue. Nor would it be permissible for the Landlord to refuse consent in an attempt to acquire the property at an undervalue.”

Simons J also rejected the argument that the landlord had failed to give due consideration to the benefit that a community centre might bring to the shopping centre, stating that: “[I]t is the Tenant who bears the onus of proof of

Summer 2024 dsba.ie

Landlord and Tenant

demonstrating that consent is being unreasonably withheld.

It is only if the Tenant had put forward evidence which indicated that the proposed use as a community centre would be complementary to the shopping centre use that the evidential burden might shift to the Landlord to put forward some countervailing evidence. The striking feature of the present case is that the Tenant has failed, at any point, to provide any detail as to what might be involved in the community centre use, still less to adduce evidence as to relevant factors such as operating hours, footfall, dwell times and car parking demand.”

Another statutory provision, Section 17(1)(a)(iii)(a) of the Landlord and Tenant (Amendment) Act 1980, was also the subject of recent consideration by the Court of Appeal in Dublin Port Company v Automation Transport Limited [2024] IECA 41.

As inserted by Section 47 of the Civil Law (Miscellaneous Provisions) Act 2008, Section 17(1)(a) (iiia) provided that a tenant’s right to a new tenancy under Part II of the 1980 Act was restricted: “[i]f section 13(1)(a) (as amended by section 3 of the Landlord and Tenant (Amendment) Act 1994) applies to the tenement, the tenant has renounced in writing, whether for or without valuable consideration, his or her entitlement to a new tenancy in the tenement and has received independent legal advice in relation to the renunciation” In Dublin Port, a tenant argued that a renunciation executed by it of its statutory right to a new tenancy under Part II of the 1980 Act was invalid because of (i) drafting flaws in the purported renunciation and (ii) failure to provide independent legal advice to the tenant prior to executing same. In the High Court, McDonald J had applied the principles of construction laid down by Lord Hoffman in Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101 to find that, irrespective of the drafting flaws, the document executed by the tenant was in essence a renunciation.

He had further found that, having signed this document, which expressly stated that independent legal advice had been received, the tenant could not subsequently assert that such advice had not been provided.

On appeal, the Court of Appeal (Collins J and Haughton J) affirmed the approach taken by McDonald J and held that he was fully entitled to conclude that the document executed by the tenant was a renunciation and that independent legal advice had been given.

The final statutory provision featuring in recent landlord and tenant caselaw was Section 17 of Deasy’s Act 1860 which provides that: “Personal chattels… erected and affixed to the freehold by the tenant at his sole expense, for any purpose of trade… or for ornament… in his occupation of the demised premises, and so attached to the freehold that they can be removed without substantial damage to the freehold or to the fixture itself, and which shall not have been so erected or affixed in pursuance of an obligation or in violation of any agreement in that behalf, may be removed by the tenant… during the tenancy… except so far as may be otherwise specifically provided by the contract of tenancy…”

In RGRE Grafton Ltd v Bewley’s Café Grafton Street Ltd [2023] IEHC 25 the High Court (McDonald J again) was asked to consider whether stained glass windows within the renowned Bewley’s Café formed part of the

fabric of the Café, or could be classified as moveable fixtures for the purpose of this provision.

McDonald J held that one set of windows within the café (“the Four Orders windows”) were conventional windows and as such not fixtures at all but rather part and parcel of the external shell of the building. The other set of windows (“the Swan Yard windows”) were installed as part of a double fenestration system. As a consequence, they were not part of the external shell of the café but rather items installed by the tenant at its expense as ornamentation in relation to its occupation of the building and for the purpose of the café business operated by it. They therefore satisfied the definition of tenant fixtures in Section 17.

A very detailed and helpful discussion of this complex case can be found in Louise Wright’s ‘The Fate of Harry Clarke’s Stained Glass Windows,’ 2023 (2) CPLJ 22, in which Ms Wright concludes that the RGRE decision emphasises both the need to ensure that there is valid documentary evidence identifying the landlord and tenant’s fixtures and fittings when entering into leasehold arrangements and the importance of advising a tenant/purchaser to appoint an architect/engineer to carry out a survey of the demised premises and to carry out its own inspection.

The final landlord and tenant case to be considered is Maldua Ltd v Walton [2023] IEHC 576, an interlocutory relief application which raised the thorny issue of whether an occupation agreement in respect of a guesthouse, subsequently modified for use as refugee accommodation, constituted a lease or a licence. While providing for exclusive possession in return for periodic payments, the agreement, signed by the occupier without independent legal advice, expressly described itself as a licence. Were it in fact a lease, the claim for interlocutory relief would fail as the correct procedure for forfeiture of a lease had not been followed by the owner.

In Maldua, the High Court (Kennedy J) refused injunctive relief on the ground that there was a possible defence that the agreement was a lease.

Whether the precedent of Kenny Homes Co Ltd v Leonard, unreported, Supreme Court, 18 June 1998 will ultimately be followed to declare the agreement a licence is something which awaits determination at plenary hearing.

In conclusion, the above caselaw features a number of varied and topical issues which have plagued practitioners in landlord and tenant law throughout the current century. Some of the decisions, in particular those of the Court of Appeal in Footlocker, Dublin Port and Egerton, are likely to stand as definitive rulings of principle. Others, such as Propmaster or Cambervale, have the potential likewise to be definitive but have particular features which could result in their being limited to their facts. Maldua and Leinster Leader are essentially preliminary decisions raising interesting points which may or may not be followed at final hearing. Practitioners will want to keep an eye out in the future for the final outcome of these two cases. In the meantime, we should be grateful that, in the unfortunate absence of comprehensive statutory consolidation of this area of law, landlord and tenant issues are getting so much attention from our superior courts, particularly the always thoughtful and considered Court of Appeal. P

The RGRE decision emphasises both the need to ensure that there is valid documentary evidence identifying the landlord and tenant’s fixtures and fittings when entering into leasehold arrangements and the importance of advising a tenant/ purchaser to appoint an architect/ engineer to carry out a survey of the demised premises and to carry out its own inspection

the Parchment 43

Flexible and Remote Working Rights Earlier this year, the Workplace Relations Commission introduced a new code of practice on the right of employees to request flexible and remote working. Mark Fitzgibbon assesses the new code

O

What is ‘Remote Working’?

What is ‘Flexible Working’?

Making a Request

n 7th March 2024, the Workplace Relations Commission (“WRC”) published a Code of Practice for Employers and Employees on the Right to Request Flexible Working and the Right to Request Remote Working. This is a welcome development for both employers and employees as the Code is a key aspect of the Work Life Balance and Miscellaneous Provisions Act, 2023 (“the Act”).

While the Code is not legally binding, it provides practical guidance on best practice to employers and employees regarding how employers can deal with requests made by employees for flexible and remote working. While failure to follow the Code is not an offence in itself, the Code is admissible in evidence before a Court, the Labour Court or an Adjudication Officer of the WRC.

The statutory right to request flexible working is set out in the Parental Leave Act, 1998 as amended by the Work Life Balance and Miscellaneous Provisions Act, 2023. Flexible working is defined as “a working arrangement where an employee’s working hours or working patterns are adjusted through the use of remote working arrangements, flexible working schedules or reduced working hours”.

Under the Code, only certain employees have a right to request flexible working for caring purposes.

An employee must be: • A parent or acting in loco parentis to a child under the age of 12, or under the age of 16 if the child has a disability or illness, who is or will be providing care to the child; or • Providing or will be providing personal care or support to a specified person (their child, spouse or civil partner, cohabitant, parent or grandparent, sibling or a person residing in their household) who is in need of significant care or support for a serious medical reason.

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It is worth noting that an employee must have at least six months’ continuous service before an approved flexible working arrangement can commence.

The Act defines remote working as “an arrangement whereby some or all of the work ordinarily carried out by an employee at an employer’s place of business under a contract of employment is provided at a location other than at the employer’s place of business without change to the employee’s ordinary working hours or duties”.

Under the Code, all employees have a right to request remote working. However, similar to requests for flexible working, an employee must have at least six months’ continuous service before an approved remote working arrangement can commence.

The Code provides that an employee must submit their request for flexible or remote working to their employer as soon as is reasonably practicable, but not later than eight weeks before the proposed starting date of the arrangement. Any request must be in writing and signed by the employee, and must confirm: • Details of the proposed arrangement (days of the week, duration); • The proposed commencement date; • Reasons for the request; and • In the case of remote working, details of the proposed working location and its suitability.

Importantly, an employee must provide any information which the employer may reasonably require in relation to the request.

Considering a Request Requests for flexible and remote working must be considered within the timeframes set out in the Act. Employers should respond to requests as soon

Summer 2024 dsba.ie Marc Fitzgibbon is a partner and Head of the Employment team at Lavelle Partners LLP

as reasonably practicable, but no later than four weeks from receiving a request. This period can be extended for a further period not exceeding eight weeks where an employer has difficulty in assessing a request.

Within four weeks of receiving a request for flexible or remote working, an employer must: • Approve the request; or • Refuse the request; or • Notify the employee that an extension of time is required.

In the case of approval, an agreement must be signed by both parties setting out the details of the arrangement.

In the case of refusal, the employer must notify the employee in writing of the reasons for refusal.

Where an employer fails to consider a request, an employee may be awarded compensation of up to 20 weeks in the case of flexible working, or up to four weeks in the case of remote working by the WRC.

Termination of an Arrangement The Code provides that an employer may terminate an approved remote or flexible working arrangement if it would have, or is having, “a substantial adverse effect on the operation of their business, profession or occupation”.

An employer must notify an employee in writing of the proposal to terminate the arrangement and outline the grounds for termination. Furthermore, an employer must give the employee seven days after receipt of the notice to make representations to the employer, which the employer must duly consider before deciding whether to provide notice of termination.

It is worth noting that an employee may also request by written notice to terminate a remote or flexible working arrangement and return to their original working arrangement.

Employment Law

Protection against Penalisation An employer must not penalise an employee for proposing to or having exercised their rights under the Act to make a request for remote or flexible working or requesting to return to a previous working arrangement. Failing this, an employee may make a complaint to the WRC.

Maintaining Records Employers must maintain adequate records of approved arrangements for a period of three years.

Employers who fail to do so are liable on summary conviction to a fine of up to €2,500. Specifically, records must include the following information: • The period of employment of each employee; and • The dates on which each employee was on an approved remote or flexible working arrangement; and • The number of times each employee was on an approved remote or flexible working arrangement.

Employers must also retain records of refused arrangements for a period of one year, to include all notices given or received by the employer or employee.

It is worth noting that an employee must have at least six months’ continuous service before an approved flexible working arrangement can commence

Other Considerations It is important that the requirements of working time legislation (Organisation of Working Time Act 1997) and workplace health and safety legislation (Safety, Health and Welfare at Work Act 2005) are adhered to by employers in the context of flexible and remote working arrangements.

Conclusion The Code provides practical guidance for both employers and employees on the new statutory rights of employees to request flexible and remote working. The Code is particularly beneficial for employers as they navigate the complexities of new working arrangements. P the Parchment 45

Pregnant and heading for Belfast Giving her own personal insight, Maeve Delargy outlines the shortcoming of the Children and Family Relationships Act 2015 (sections 2 and 3 were only commenced in May 2020) – and where inequalities persist in the eyes of the law

I

t is not because I don’t think the maternity services in the Republic are good enough. I have been taken care of by Holles Street for one pregnancy already, and my wife for two.

I’m planning to give birth in Belfast to get a birth certificate – or, more specifically, a birth certificate with my name and my wife’s name on it.

A birth certificate that reflects the reality of our family.

My mum questions whether the hassle of transferring my care to a hospital in Belfast and giving birth there is worth it. And perhaps she’s right. Having a Northern Irish birth certificate with both of our names on it doesn’t actually mean we are both recognised as parents in the Republic. Like our other children, this child will only have one legal parent: whichever one of us gave birth. The other parent will be a legal stranger to them until, when the child turns two, then that parent can apply to be a guardian.

But, notwithstanding the massive logistical nightmare that uprooting and heading to Belfast with three young children for an indeterminate amount of time is going to be, we still think it’s worth doing. What the birth certificate means to us, and, we think, will mean to our children in the future, makes all the planning worthwhile.

It also means that, in case anyone changes their mind, there is at least one jurisdiction where the legal rights and responsibilities of our friend, as the donor, and of us, as the parents, are respected and would be upheld in a court.

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So why can’t we just give birth in Ireland and have both our names on the birth certificate here? Didn’t the law change in 2020?

On 4 May 2020 sections 2 and 3 of the Children and Family Relationships Act 2015 were finally commenced. This changed the law to allow some same-sex female couples to have both their names on the birth certificate going forward. However, strict rules have to be followed including: 1. The baby has to be conceived in Ireland; 2. The baby has to be born in Ireland; and 3. The baby has to be conceived in a fertility clinic.

While known donors, i.e. someone known to the couple, can now be used, finding a fertility clinic in Ireland to provide this service is difficult.

But can’t all that be fixed in the Health (Assisted Human Reproduction) Bill 2023 that is being debated in the Seanad?

On 29 May 2024 the AHR Bill passed Report Stage in the Dáil. While advocacy groups (Equality for Children, Irish Gay Dads and LGBT Ireland) campaigning on these issues had hoped based on promises made by Minister Stephen Donnelly that provisions would be introduced at Report Stage to rectify these gaps, that did not occur.

Instead, Minister Donnelly announced that in order to ensure the AHR Bill passed before the Dáil rises, new amending legislation would instead be brought forward in September to address these issues.

Summer 2024 dsba.ie Maeve Delargy is a senior associate at Philip Lee LLP

When the AHR Bill was debated in the Seanad on 13 June 2024, the Minister indicated that: “This amending Bill will, among other things and subject to further consultation with the Office of the Attorney General, provide clarity for Irish residents undertaking donor-assisted procedures abroad to obtain a declaration of parentage and for Irish citizens domiciled abroad who have undergone surrogacy or donor-assisted human reproduction abroad to have their parentage recognised where it is not already.” Therefore, the amending legislation will hopefully address issues 1 and 2 above.

As regards issue 3, the AHR Bill will ensure that any children conceived prior to 4 May 2020 outside of a clinical setting i.e. via ‘at home’ or ‘nonclinical’ insemination will be able to get a new birth certificate with both of their parents listed on it.

This is a huge achievement for the advocacy groups who have been campaigning on this issue for years and the work of all those prior to that. It is a big change that will have a massive impact for lesbianheaded families in Ireland.

However, the advocacy groups have been told that children conceived outside a clinic after 4 May 2020 will not be included. This is despite a robust legal solution being drafted for the government.

This solution was included in a Private Member’s Bill (PMB) brought forward by Labour which was debated before the Dáil last year.

Unfortunately, the government decided to postpone this PMB for nine months precisely because, as Minister Donnelly said in the Dáil at

Human Rights

the time, these issues “are the focus of changes I am making to the Children and Family Relationships Act 2015, which I am introducing by way of Committee and Report Stage amendments”. As described above, in the end this has not happened – https://www. oireachtas.ie/en/debates/debate/dail/2024-0125/40/.

What does that mean for my family?

Well, for multiple reasons, including that we did not need expensive and invasive medical treatment, we chose to conceive our children without the help of a fertility clinic. We do have one child that was conceived prior to May 2020 and, if the government include children conceived and born outside Ireland, then I will be able to withdraw my application to adopt her and can apply for a declaration that I am her parent.

But, for our other two children, and the one coming next, nothing will change. They were all conceived post 4 May 2020 and outside of a fertility clinic and so, unlike their oldest sister, they will only have one parent in the eyes of the law.

This will create inequality within our family and reflects the inequality that many LGBT+ families suffer under the current law and the AHR Bill, as proposed. We hope that when the supplementary bill is brought forward in the autumn, this will be inclusive of all LGBT+ families and ensure we live in an Ireland where all children are treated equally. P

The AHR Bill will ensure that any children conceived prior to 4 May 2020 outside of a clinical setting i.e. via ‘at home’ or ‘non-clinical’ insemination will be able to get a new birth certificate with both of their parents listed on it the Parchment 47

Burnout in the Legal Profession -THE RISE AND FALL

OF THE SUPERHUMAN SOLICITOR Wellbeing is critical for those working with the high demands of being a solicitor and working in the law. Michael J. O’Neill shines a welcome light on how the legal profession cope and how professional representative bodies can do more to protect their members

W

hile undertaking a Trinity Post Grad, I undertook a study and paper dealing with burnout in the legal profession. The work was to find engagement with the general public who are not fully aware of the workings and pressures of being a lawyer. This short article is but a summary of a larger body of work that I have undertaken as part of my research into this important area.

In a great line from the movie, The Usual Suspects [1995], the character of Roger Verbal Kint’s (SPOILER ALERT: Keyser Sose) final words in the film are: “After that, my guess is that you will never hear from him again. The greatest trick the devil ever pulled was convincing the world he did not exist. And like that…he is gone.”

Is this the way that the legal profession has progressed? It is that follow-on question to be asked on completing my paper entitled The Death of Superman, Burnout in the Legal Profession: maybe in convincing us that this Superhero persona doesn’t exist in the profession; that toxic cultures are problems only within specific offices; that burnout affects only those weak and vulnerable solicitors.

Burnout revealed these superhuman expectations and burdens that lawyers must embrace in their legal

48 the Parchment

education and carry around in practice [in the form of this Superman persona] are what makes them the perfect hosts and leads to burnouts with devastating effect.

It is interesting that the Irish Health Service Executive [HSE] issued a paper on HSE Policy for Preventing & Managing Stress in the Workplace [Document reference No. HSAG 2012/2. Revision no 1.0 Approval Date 18th September 2012.]. Here the health profession recognised that workplace stress is a health and safety issue and set out in their policy document a framework to identity and reduce workplace stress. This, long before the proclamations by the World Health Organisation in 2019 wherein they defined burnout as an occupational phenomenon.

While the contents of this HSE policy paper are to be admired as a framework for all professions including the legal profession, the most contrasting aspect of the treatment of members of the medical profession and the legal profession can be seen in the very first sentence of HSE policy statement.

“The HSE believes that our employees are our most important asset in the delivery of high-quality health and social services. We are committed to protecting your safety, health, and welfare at work.”

And now a brief reminder of what the legal

Summer 2024 dsba.ie Michael J. O’Neill, Dip Legal Studies, B.A, Dip Creativity, Innovation & Leadership, is a solicitor with over 26 years in practice

profession believes.

“A Profession’s most valuable asset is its collective reputation and the confidence which that inspires.”

And to quote further from the judgment of Sir Thomas Bingham in Bolton v. Law Society [1994] 1 WLR: “The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.”

This has become almost a soundbite of the profession and where it holds its members and their welfare and wellbeing. It is also a quote that is continuously cited in disciplinary proceedings against members of the legal profession.

The HSE Policy document places a strong onus on management to recognise those stressors that may place employees in difficult and harmful situations and sets out procedures that management should follow to cope and deal with same.

However, members of the legal profession are left in situations that I refer to in my paper as mismatches in their workplace. Members wear these Superhuman suits that may from the outside appear well-tailored but don’t fit their beliefs, values etc. No matter how good they appear, the suit doesn’t fit right. They can only wear it so long before it becomes irritable. They become the ducks in the pond of perceived normality in the profession – thereby seeing the signs of burnout, i.e. disengagement, cynicism, detachment, frustration – but as far as the members are concerned this is acceptable culture of the profession…again part of the price of becoming a member of the legal profession.

In the book entitled Mental Health and Wellbeing in the Legal Profession by Emma Jones, Neil Graffin, Rajvinder Samra and Mathijs Lucassen [2020, Bristol University Press], they write: “In recent years, the level of discussion of wellbeing and mental health both within the legal profession and by its observers has grown exponentially globally. There appears to be an increasing understanding, at least in some sectors, that change is needed and even a sense that change may be coming. However, there is a suspicion that this current focus on wellbeing and mental health in law could be something of a fad or phase...

An unhealthy legal profession has consequences for society that move far beyond loss of profits and economic issues. It has multilayered and potentially devastating consequences for both individuals and society. There may not be one simple ‘cure’ to the issues related to wellbeing and mental health of Lawyers, but there is a need for a sustained and evidence-based transformation of the profession to ensure that Lawyers can successfully meet the needs of the 21st century.”

We have read study after study in which the data suggests legal professionals are at a high risk of burnout. For example, Legal Mental Health charity LawCare carried out research study in Oct 2020 and Jan 2021, entitled ‘Life in the Law’, from over 1,700 professionals in the UK, Republic of Ireland, Jersey, Guernsey and Isle of Man. The aim of the research was to take a snapshot of the mental health and wellbeing in the legal profession.

It found that participants aged between 26 and 35 displayed the highest burnout scores and also reported the lowest autonomy, lowest psychological

safety, and highest work intensity score.

We can not simply let our profession suffer a form of blackout and forget what its members have expressed in numerous studies globally – and that is the demand for change.

In 2023, the Law Society of Ireland carried out a survey asking for its members to give their views and assistance in shaping the future direction of the Law Society itself. While they have not yet published the full results of said survey, from the extracts published, 98% of respondents confirmed that change is required by the Law Society to tackle the challenges the profession faces. Of more concern is that over 78% of respondents described wellbeing and mental health as challenging or extremely challenging [Law Society Survey B&A Research].

I believe that any such survey can not just be the prerogative of the Law Society to hold but should be released to its members without further delay to know that they have been heard first and foremost.

Otherwise, it is another form of blackout, of allowing suspicions among its members to foster that nothing will be done and that it is normal service as always, keep that Superhuman suit on and just get on with things.

When the full results of the survey are released, I hope that a collaborative approach between the Society and members would be taken going forward with the one goal being the need to change. P

Wellbeing

Over 78% of respondents described wellbeing and mental health as challenging or extremely challenging

Colleagues who may be affected by some issues raised in this article can contact the DSBA’s ‘Consult a Colleague’ in total confidence by telephoning 01 284 8484. All calls are treated in the strictest confidence and there is no need to give a name or number. the Parchment 49

The Control of Litigation Costs?

A recent Indecon report reviewed four different options to control litigation costs in Ireland. On the back of the Administration of Civil Justice Review Report by Mr. Justice Peter Kelly, Aisling McHugh assesses the landscape

I

reland, as an island nation, is considered to be a high cost one. In 2022, Ireland had the second highest consumer prices in the EU according to the Central Statistics Office and was described as the fifth most expensive economy in the EU in 2019 according to the National Competitive Council.

Litigation in Ireland is also considered to be high cost. So much so that the cost of litigation for the State and consumers was one of a number of concerns that Minister McEntee had in 2017 when she commissioned the largest review of civil law ever undertaken in the State. Chaired by the former President Mr Justice Peter Kelly, the Administration of Civil Justice Review Report was published in December 2020.

A noted concern of Mr Justice Peter Kelly was that the report would turn out to have achieved “nothing but the concoction of a very fat blue book on a very high shelf ”.

The Kelly Review Group The Review Group found the issue of how to control litigation costs to be the only one where consensus could not be reached, and it published both the majority view proposal of non-binding guidelines and the minority view proposal of prescribed maximum costs with safeguards for exceptional cases.

Mr Justice Peter Kelly shared his insight having chaired the sub-group that the more radical measures of the minority may be the only way to achieve the cost reductions sought.

It is notable that neither the Competition and Consumer Protection Commission nor the Office of the Legal Cost Adjudicator are named in the list of Respondents furnishing submissions at Appendix 1 of the Kelly Report.

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Welcoming the report, Minister McEntee issued a press release referencing both the majority and minority proposal in equal measure and describing the high cost of litigation as one of the main barriers for accessing justice.

On 7th February 2024, a report was published by Indecon International Consultants, on the economic impact of various options for the Control of Litigation Cost. This report called the Multi-Criteria Impact Evaluation of Options for the Control of Litigation Costs found that there is a dearth of information data on the cost of litigation including how these costs have changed over time or how they vary. This finding is described by Indecon as “a lack of transparency” which “exasperated the challenges faced by consumers of litigation services”.

The Indecon report reviewed four different options to control litigation costs. The report found that significant consultation work will be required by the department in consultation with stakeholders, noting that the detailed design of any table of costs or guidelines was outside the scope of the assignment.

The Four Options

Option 1: Non-binding guidelines on maximum litigation costs (Majority Justice Kelly Review Option).

This was found to be close to the status quo as the Office of the Legal Costs Adjudicators of the High Court may already implicitly use certain guidelines from their caseloads on appropriate costs as per Schedule 1 of the Legal Services Regulations Act 2015. This option was viewed therefore to be unlikely to have significant impact. It is disappointing that direct input from the OLCA on proposals does not appear to have been sought but it is noticed that the

Summer 2024 dsba.ie Aisling McHugh is a solicitor at Gleeson McGrath Baldwin LLP

Litigation/Costs

task of producing the guidelines could be given as a responsibility to the OLCA or to the LSRA. It noted that significant work would be required to develop the guidelines and these would need to be updated on a regular basis. This work would also apply to Option 2 and Option 3.

Option 2: Binding guidelines on maximum litigation costs (Minority Justice Kelly Review Option).

This would be an extension of the model used in the District Court to be applicable to Circuit and Higher Court cases. A key issue would be to ensure that any maximum level didn’t result in all costs rising to the maximum level and result in tacit collusion or the restriction of competition. Indecon’s metrics were not supportive of this option. It would involve a table of maximum costs prescribed by a new Litigation Court Committee which could be derogated from in exceptional circumstances.

Option 3: Non-binding guidelines on litigation costs but with significantly enhanced transparency measures and other incentives to reduce costs.

A requirement would be that all clients would be informed of the costs, the existence of the guidelines and the factors which could lead to any divergence from the guidelines. It would also be required for a legal professional to submit details to the OLCA of any divergence from the guidelines and the OLCA would publish the list of these cases on an annual basis. It is said that this publication would enhance transparency of the impact of the implementation of the guidelines and to provide an evidence base for other measures to be considered if appropriate.

This is the majority Kelly review option with an added measure on transparency and incentive mechanisms said to help address the information gaps faced by consumers and policymakers.

Arguably, the notification requirements under Section 150 could be said to provide a high level of transparency for clients. A survey of clients of legal service could assist in determining this. Indecon’s view was that the existing rules only require an “outline” and don’t require the type of information included in “detailed non-binding guidelines of costs”.

The idea that an annual report documenting the divergence cases which would be exceptional cases would assist consumers to make informed decisions when choosing a legal practitioner – or that it could also facilitate practitioners who wish to gain a competitive advantage by (1) offering costs below the guideline or (2) providing certainty that there would be no exceptions to the guideline costs – ignores the normal rule that costs follow the event, i.e. the losing side pays.

Option 4: Binding maximum litigation costs but only for non-complex personal injury cases below a €30,000 settlement level.

This is option 2 but for large volume non-complex personal injury cases. This was described as possibly being a first step in any reform process and could be used to inform policymakers of whether any further extension of the binding rules was warranted. The

report however notes that the District Court already has a Schedule of Costs. Any proposed new schedule would extend the Schedule of Costs to cases where rewards were in the lower end of Circuit Court jurisdiction.

The above four options were analysed using an analytical framework of 10 key policy objectives.

The views of the Competition and Consumer Protection Commission reinforced Indecon’s opinions on the importance of transparency and in considering the impact on competition. Indecon found that the Minority Kelly Option would be the least beneficial from a competition perspective due to the risk of “tacit collusive behaviour” amongst legal practitioners. The highest score was given to Option 3, the non-binding guidelines with additional transparency.

It is notable that the report does not view the current existing rules on cost disclosures as going far enough: “the existing rules only require them to outline the basis for the costs and do not require the type of information included in detailed non-binding guidelines of costs”.

The Office of the Legal Costs Adjudicators also has an online Register of Determinations that is available free of charge to the general public. The costs follow the event rule is the missing link and it is the losing side of a contested dispute that usually bears the most costs. It is also notable that since the publication of the Indecon report, there has been no corresponding press release by the Minister or the Department of Justice similar to the one issued with the Kelly report. With the passing months there’s a niggling sense/fear that not one but two blue books shall sit on a high shelf gathering dust in the cloud for some time to come. P

With the passing months there’s a niggling sense/ fear that not one but two blue books shall sit on a high shelf gathering dust in the cloud for some time to come

the Parchment 51

Proposed new Property Legislation comes at cost A private member’s bill entitled ‘Seller’s Legal Pack for Property Buyers Bill 2021’ is presently before the Dáil. Lesley O’Neill outlines how the Bill seeks to establish a statutory procedure whereby vendors would be obliged to provide a ‘Seller’s Legal Pack’ (SLP) but warns that there are cost implications for both vendors and purchasers

T

he proposed new legislation provides that an SLP must be made available to prospective purchasers at the time of advertisement of a property with an aim of ensuring that purchasers have all necessary legal information pertaining to the property at the outset.

The Bill (at Section 3.1) presently lists ten documents that vendors must provide and is supplemented by Section 3.2, which lists a further 15 documents which the vendor can at his/her discretion provide.

Having regard to the compulsory nature of Section 3.1, vendors would, going forward, be obliged to provide the following documentation contemporaneously with the property being placed on the open market: (a) Law Society Conditions/Contracts of Sale (b) a certified copy of file & file plan or root of unregistered title (c) an Architect’s Certificate of Compliance with planning permission (d) an Architect’s Certificate of Compliance with building regulations (e) a copy of all planning permissions and building regulations documents (f) receipts for financial conditions (g) a letter confirming roads and services or evidence of rights of way and wayleave including rights of access to, over or affecting the property interest, fishing rights etc. (h) local property history details (i) a BER Certificate & Advisory Report Certificate of discharge or exemption from Non-Private Residence Charge (j) a report summary on planning search, judgment search, Compulsory Purchase Order Search, bankruptcy search, Sheriff and Revenue Sheriff search, Registry of Deeds Search and company search.

52 the Parchment

While the proposals are not ostensibly thought to be dissimilar to the present auction regime whereby vendors’ agents routinely upload and disseminate an analogous form of legal pack, Section 5 of the Bill critically requires that the “documents included in the SLP must be dated no earlier than the date that falls one year before the first point of placing the property on the market for sale”.

This will mean that vendors will be required to procure at their own cost up-to-date certificates of compliance with planning permission and building control legislation, for example, which goes much further than general condition 32 in the present iteration of the Law Society 2023 General Conditions of Sale.

Section 5 of the Bill also mandates that vendors provide an up-to-date complement of searches the costs of which again will be borne by the vendor in advance of placing the property for sale on the open market.

Practitioners will also note the absence of certain other critical documents in Section 3.1 such as ‘MUD Act’ replies and indeed replies to requisition on title which will prejudice a full investigation of title.

Section 3.1 requires the potential engagement of five professionals to include solicitors, BER assessors, architects and law searchers as well as requiring engagement with the Local Authority, Revenue and where applicable the funder, again up front and at the vendor’s sole expense.

The ‘up front’ SLP will not however be mandated where, for example, the sale comprises an open sale of mixed commercial and residential property and will also not be required where the property is being

Summer 2024 dsba.ie Lesley O’Neill is a solicitor at Blake & Kenny, Galway

sold without vacant possession albeit practitioners will be acutely aware that prospective investorpurchasers consider the terms of an extant tenancy critical in terms of calculating net yield.

Whilst the Bill speaks to the provision of the SLP as a step in making the conveyancing process “more efficient’’, it may, as outlined above, increase both the vendor’s and purchaser’s costs in the engagement by the vendor of his/her ‘property service provider’ (auctioneer) who will be obliged to ensure that the SLP is provided and will (in many cases) also involve a separate cost to the vendor in terms of release fee where title documents are taken up from a lending institution and further legal fees to the vendor’s solicitor (once engaged) in terms of the solicitor’s review of title and the preparation of the agreement of sale which is the first mandatory document set out in Section 3.1 of the Bill and will, it is envisioned, lead to various forms of pre-contract enquiries being raised in circumstances where no form of binding legal agreement even exists.

It is not unreasonable to expect that some proposed purchasers will engage solicitors to review the agreement for sale and the SLP before a formal offer is even made which will of course lead to delays and add to the costs borne by purchasers in an already inflated market.

The SLP costs will all be borne by the vendor before the property is even placed on the market and will not be recoverable in the event the property is not sold.

Dail Eireann discussions on the SLP are presently confined to Second Stage debate but allude to the foregoing costs and support the contention that the SLP may lead to sunken costs where the sale

Conveyancing

falls through or where no purchaser appears and whilst the Government in principle supports the Bill, it has in Dail discussion asserted (via Minister for Justice Helen McEntee TD) that “there is a risk the Bill as drafted could lead to increased conveyancing costs and delays and even reduce the supply of properties coming onto the market” and that the Bill should be examined in full as it moves to Committee stage.

The discussions also refer to a similar form of SLP that was introduced in England and Wales in 2007, but which was suspended on the basis that it added to conveyancing costs and delays. It is clear therefore that the Bill requires further legislative scrutiny as it advances as it “risks not achieving its overall intended purpose”.

Whilst the Institute of Professional Auctioneers and Valuers (IPAV) has indicated that it is supporting the general scheme of the Bill, it is difficult to conceive how the Bill in its current guise will reduce delays when Section 4 of the Bill provides that the ‘property service provider’ shall advertise the property with the SLP, noting as above that input and documentation will in some cases be required from funders, solicitors, BER assessors, architects, law searchers, the Local Authority and Revenue in order to compile the mandatory SLP under Section 3.1.

It remains to be seen as to whether the Committee will recommend the Bill, but it is evident that the Bill’s efforts to ‘’front load the process to provide certainty and efficiency to all” will conversely increase both costs and inefficiencies and it is imperative therefore that the challenges addressed in this article and those outlined in the Second Stage debate are comprehensively addressed. P

The SLP costs will all be borne by the vendor before the property is even placed on the market and will not be recoverable in the event the property is not sold

the Parchment 53

Unlawful Detention – GET YOUR CLIENT OUT! Article 40 applications are Ireland’s habeas corpus procedure.

Matthew Holmes BL gives an overview of the procedure for Parchment readers who are unfamiliar with it

I

n certain areas, in particular childcare, deportation and mental health, specialised approaches have developed over time. Article 40 proceedings are civil proceedings even when they stem from criminal cases.

Article 40 is an emergency application. As such it can be brought out of hours and the rules are significantly more flexible than they are in any other area of law. It is the most expeditious form of court proceeding in Irish law. I have defended an Article 40 application on Easter Sunday in the Four Courts; other applications have been heard in judges’ houses.

Bringing an application is a two-stage process. The first is an ex parte leave application and the second is the substantive hearing. Of course, if you have a strong case the State may concede after the first stage. It is possible to bring an Article 40 application without the client’s instructions or even knowledge (State (Quinn) v Ryan [1965] IR 70, The People (Director of Public Prosecution v Pringle [1981]).

Grounds for Application Grounds for an Article 40 include that the procedures used to detain the applicant in custody were not in accordance with law, the warrant justifying the detention is defective in some way, they are being held in poor conditions (this ground exists more in theory than in practice) or they are being held under an unconstitutional law. Being surrounded by GAA fans has been found not to be a ground for Article 40.

54 the Parchment

Stamp duty is not levied on Article 40 applications.

Unlike judicial review, Article 40 can apply against orders of the High Court. Article 40 applications take priority over all other court proceedings. The detainer is the appropriate respondent to an Article 40 application although there is old case law which says that you can bring habeas corpus proceedings against someone who is in a position to recover the applicant from their detainer.

Procedure In order to bring an Article 40 application you will need an affidavit laying out why the detention is illegal.

This affidavit should be from the client if at all possible.

This will not always be possible. The Courts in the past have acted on unsworn affidavits or even letters.

More frequently an affidavit sworn by the applicant’s solicitor will be used. There is case law saying that where a solicitor swears the affidavit then another should be sworn by the client as soon as possible. In practice I tend not to object to solicitors’ affidavits where the facts are accepted. Others may have a different approach. In emergencies the High Court registrars prefer that the affidavit be sworn before they are contacted, if possible. If the affidavit is unsworn the judge should be advised of this as soon as possible to avoid any delays. In such cases the court may direct that the affidavit be sworn before the return stage.

It is advisable to email a copy of the affidavit to the registrar for the non-jury judicial review list as soon as

Summer 2024 dsba.ie Matthew Holmes BL is a practising barrister who specialises in administrative law and works on the State’s High Court bail and Habeas Corpus panels

possible, even if it is unsworn. It can then be given to the judge to help expedite the case. The matter should go first to the High Court Central Office if possible. The Central Office should be informed, in the subject line if via email, that the matter is an urgent Article 40 application. They will give the matter a record number and, unless otherwise impossible, the matter should not start in Court without a record number. If the Central Office is not open then the registrars should be contacted directly.

If the application has to be moved at the weekend, the original affidavit may be filed in court and the record number will be issued by the registrar. Usually where an inquiry is directed over the weekend, the duty judge will list the inquiry before the Non-Jury List Judge on the Monday morning. You can also simply walk into the High Court and ask for an inquiry, but the registrars are unlikely to thank you for this. The Supreme Court in Braney v Ireland said that “Such cases proceed on a matter of urgency and without the need for the filing of documents; a simple oral application to any judge of the High Court suffices. There are no procedures since the constitutional imperative of liberty transcends all rules of court.”

There is also case law saying that an Article 40 inquiry can be initiated by ringing a judge directly (C.I. v The Member in Charge of Dun Laoghaire Garda Station [2020] IEHC 512). In emergencies, registrars can be contacted via the Four Courts switchboard on (01) 8886000.

When applying for leave you have the right to choose the judge you make the application to. This may be the only area of law in which you can directly select your judge. The standard of proof at this stage is low: you need to show prima facie or arguable grounds, although a judge is not obliged to direct an inquiry. If you are refused at this stage, you can apply again to another judge, but you should advise them that a previous application was refused. If granted, a time will be set for the substantive hearing – which is usually the next day but can be the same day if required. You do not have the right to select the judge or judges who hear the substantive case and in my experience, it is usually a different judge to the one who directed the inquiry. Cases can be heard in camera, but the case law leans against this. If it is being heard in a judge’s house it will be held in camera for obvious reasons.

Criminal Law

In emergencies the High Court registrars prefer that the affidavit be sworn before they are contacted, if possible

Legal Aid There is legal aid under the custody issues scheme to cover Article 40 applications. If you intend to rely on this scheme, it should be applied for when moving the initial leave application. There is case law saying that if it is not applied for at this stage then it should not be granted at the substantive stage. The costs of winning an Article 40 can be higher than the scheme.

If it is anticipated that there may be an issue with the facts in the case it may be worth applying for the DAR at this stage also. In the majority of cases the the Parchment 55

Criminal Law

Some have tried to use it as a faster means of getting bail than going to the High Court bail appeals list, although there is case law against this

56 the Parchment

applicant will have a silk and a junior counsel.

The second part of the Article 40 inquiry is called the return stage. If the judge directs an inquiry, then the return stage will occur later at a time specified by the judge, usually the next day.

The respondent must be given an opportunity of justifying the detention. The respondents in most cases will be governors of prisons, directors of mental health facilities or members in charge of Garda stations. In one case from the 1950s it was the mother superior of a convent. The applicant may be produced in court – they do not have to be.

The Respondent must certify in writing the grounds of the detention. This should include a copy of the warrant grounding the detention. If this warrant is defective then this will be grounds for an Article 40 application in itself, although the State can apply to amend a warrant. At the return stage the burden of proof will be on the detainer to justify the detention. However, if you wish to rely on specific facts then the burden of proof will be on you to prove them; however, the overall burden remains on the detainer.

Whilst the Court should move quickly in an Article 40 application, that does not mean it cannot adjourn a case. In the event that it adjourns a case it has the power to grant bail to the applicant, pending the outcome of the Article 40 application. Some have tried to use it as a faster means of getting bail than going to the High Court bail appeals list, although there is case law against this. Similarly, there is case law saying that where appeal or judicial review is an appropriate remedy

to a criminal detention then these should be used instead of an Article 40 application.

The order of the substantive hearing will usually be the applicant going first explaining why the detention is unlawful, the respondent replying justifying the detention and finally a right of reply for the applicant.

There is case law allowing for it to go in other ways.

The court’s powers during the hearing are the widest possible.

It is possible to challenge the constitutionality of laws in an Article 40 application, although the burden of proof is not on the detainer to prove that they are constitutional (where they are post 1937 laws). In the event that the High Court thinks a law is unconstitutional it is obliged to state a case on this.

This is due to State (Burke) v Lennon [1940] I.R. 136 which was an Article 40 application and the first time a law was declared unconstitutional. The constitution was amended in the aftermath of that case as it was thought at the time that it was impossible to appeal a successful habeas corpus application. That position changed in the 1960s.

The order in an Article 40 application is either the release of the applicant where they are in unlawful custody, or a refusal of that release where they are not.

The Court cannot make other judicial review style orders such as quashing something or prohibiting something from happening. Release does not have to be immediate release. In appropriate cases, such as ones involving children or mental health patients, it can involve a phased release over time. If release is overturned on appeal, then the client will have to go back into custody. P

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No Concept of “Partial” Frustration in Irish law The Court of Appeal recently affirmed the decision of the High Court in Foot Locker Retail Ireland Limited v Percy Nominees Limited [2024] IECA 65 which held that the concept of “partial” or “temporary” frustration does not exist in Irish law. Patrick Longworth and Kate O’Halloran assess the Court’s ruling

Background The plaintiff tenant initiated proceedings against the defendant landlord seeking a declaration that by reason of the Covid-19 closure regulations and the consequent inability of the plaintiff to trade from the leased premises on Grafton Street, the common intention of the parties to the lease had been frustrated in whole or in part. Accordingly, the plaintiff claimed it should be excused from making rental payments under the lease during this period.

The High Court (O’Moore J) refused the claim, and the plaintiff appealed.

Nature of Doctrine of Frustration The plaintiff acknowledged that existing authority did not recognise a concept of partial/temporary frustration, and that it was asking the Court to “make new law” in the case.

In refusing the plaintiff ’s appeal, the Court (Barniville P.) noted that the essence of the doctrine of frustration is that where the conditions for its application are met, the contract is treated as being at an end, with both parties freed from the obligations to one another and neither having any entitlement to receive any further benefits. The Court agreed with the trial judge’s comments to the effect that the plaintiff ’s claim in the case was a “one-way street” where it sought an entitlement to continue occupying the premises for the period of alleged “partial” frustration, but without the obligation to pay rent.

58 the Parchment

When considering whether a contract has been frustrated, the Court stated that it is appropriate to consider whether the consequences of a finding of frustration would be consistent with the interests of justice. Ultimately, Barniville P. agreed with the trial judge that it would not be in the interests of justice to allow the plaintiff to remain in occupation of the premises without paying rent. On that basis, the Court saw no reason to “make new law” or extend the boundaries of the existing law on frustration to accommodate the case being made by the plaintiff.

The essence of the Court’s conclusion is captured in the following passage from paragraph 159 of the judgment: “As a matter of principle, it is impossible to see how a contract can be frustrated (with the effect that it is automatically discharged and at an end) for a period and then revived or resurrected when that period is over.

That is conceptually impossible, as a matter of principle and, in the words of the trial judge, “does violence to the fundamentals of the doctrine” of frustration. So too is it entirely contrary to well-founded authority, including decisions of a number of High Court judges and case law from other jurisdictions. Notwithstanding the stated “flexibility of the doctrine of frustration, it would be stretching that doctrine well beyond breaking point for the Court to permit, as a matter of principle, a doctrine of “temporary” or “partial” frustration to arise and to have the effect for which Foot Locker contends.”

Summer 2024 dsba.ie Patrick Longworth is a member of Council of the DSBA and a senior associate in McCann FitzGerald. Kate O’Halloran is a trainee solicitor in McCann FitzGerald

Relevant Terms of the Lease Significant reliance was also placed by the plaintiff on particular terms of the lease which it claimed formed part of the fundamental bargain between the parties, and which distinguished this case from previous cases where claims of partial/temporary frustration had failed. The relevant terms were: (i) the “user” clause where the plaintiff had covenanted not to use the premises for any other purpose than as a “high quality retail shop”; and (ii) the “keep open” clause where the plaintiff had covenanted to keep the premises open for business “at all reasonable times during the usual business hours”. The plaintiff claimed the partial/ temporary frustration arose in circumstances it was not possible to comply with these key requirements of the lease during the period of the Covid-19 restrictions.

The Court of Appeal rejected the plaintiff ’s arguments on the basis of these provisions. The Court agreed with the trial judge in holding that the “user” and “keep open” covenants did not actually confer any legal entitlements on the plaintiff. Rather, both clauses in fact imposed obligations on the plaintiff and were intended to be for the benefit of the landlord.

Contrary to the plaintiff ’s submissions, the Court found that the fundamental bargain between the parties was to hold the premises for the duration of the lease in exchange for the payment of rent.

Further, various other provisions of the lease established that the only circumstances in which the

lease expressly provided that the plaintiff ’s essential obligation to pay rent would be suspended were in the event of certain “insured risks” which included fire, explosion, lightning, flood, etc – but did not include trading restrictions of the kind at issue here.

Accordingly, the Court found that this made clear how the parties had decided to allocate the risk of a change in circumstances over the term of the lease; in other words, apart from the occurrence of certain defined “insured risks”, the risk of a change in circumstances were to be borne by the tenant.

Comment The judgment represents a definitive holding by an appellate Court confirming that the concept of partial or temporary frustration does not exist in Irish law (save in limited circumstances where there are distinct and several provisions which can be severed from the balance of the contract, which did not arise in the case). It also reiterates that mere difficulty in performance of certain elements of a contract without more will not provide a party with a sufficient basis to claim frustration and treat the contract (or particular obligations within a contract) as being at an end. Although the decision applies to all contracts, it will be of particular interest to commercial landlords and tenants as the judgment contains some useful analysis on the nature of the respective parties’ obligations under a commercial lease. P

Landlord & Tenant

Contrary to the plaintiff ’s submissions, the Court found that the fundamental bargain between the parties was to hold the premises for the duration of the lease in exchange for the payment of rent

the Parchment 59

News

DSBA Annual Dinner Tony O’Sullivan and Deirdre Walsh enjoying the annual DSBA dinner

Left to right – John Fuller, President of the Southern Law Association, Matthew Kenny, President of the DSBA, and Darren Tombs, President of the Law Society of Northern Ireland

DSBA Annual Conference 2024

This year’s DSBA Annual Conference will take place in Bilbao, Spain, from Thursday 19th Sept-Sunday 22nd Sept.

60 the Parchment

The DSBA hosted its annual dinner in the Westbury Hotel on Friday 19th of April 2024.The event was attended by the Presidents of both the Law Society of Ireland and Northern Ireland, and the Presidents and/or Vice Presidents of local bar associations attended for what was a great night. The Trinitones performed before dinner and sang classics including Raglan Road, Danny Boy and Everybody

by The Back Street Boys.

Aine Hynes SC recognised at Irish Law Awards Former DSBA President and member of The Parchment committee Aine Hynes SC was celebrated at the recent 2024 Dye and Durham Irish Law Awards ceremony by scooping the ‘Special Merit Award’. This award recognises notable achievements and contributions over the past year that fall outside of the various award categories.

The introduction of the Assisted Decision-Making (Capacity) Act 2015 has seen colleagues and clients facing tremendous challenges and difficulties being encountered when trying to create Enduring Powers of Attorney. Throughout the entire period of the core and amending legislation being bills, then enacted, and right through to today, many solicitors have worked to draw attention to and to mitigate these problems. Aine Hynes SC has been a tireless advocate in campaigning for changes to allow the Enduring Powers of Attorney system to become more workable and to overcome the current unsatisfactory situation that prevails. She has led the way and brought her wealth of expertise to what has been a great challenge for the profession.

The Parchment congratulates Aine on her tireless work and urges her to continue with her trojan efforts to bring a satisfactory resolution to the current system. Please see Aine’s article in this edition of the Parchment on pages 8-11.

Congratulations are also extended to former Parchment editor Keith Walsh SC who was honoured for his new book on domestic violence (Domestic Violence: Law and Practice in Ireland), co-authored by Sonya Dixon, which won the ‘Legal Book of the Year Award’.

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DSBA CPD Seminar

The DSBA’s Mental Health and Capacity Committee hosted a seminar on the 26th April 2024.

The title of the seminar was “Assisted Decision-Making Assessing Capacity – One Year On.” The DSBA was delighted to be joined at the seminar

by President of the High Court, Mr. Justice Barniville and Judge John O’Connor of the Circuit Court. The DSBA wishes to thank Byrne Wallace for hosting the event at their office.

The speakers and topics included: • Aine Hynes SC (St. John Solicitors) – ‘Letters of Instruction, Practice Guidance for Circuit Court Applications.’

• Marie-Claire Butler (Deputy General Solicitor in the Office of the General Solicitor Minors and Wards of Court) – ‘Discharge from Wardship.’

• Professor Shaun O’Keeffe (UCD) – ‘Assisted Capacity Under ADM(C) Act.’ • Ciara Dowd BL – ‘Circuit Court DMR Applications: The Procedure (Mis)steps.’

• Orla Keane (General Council for the Mental Health Commissions (which includes the Decision Support Services) – ‘Update on Applications to the DSS.’ The seminar was chaired by Aileen Curry (Hickey Curry), Chair of the DSBA Mental Health and Capacity Committee.

Above: Katharine Kelleher and Marie Claire Butler Above left: Àine Hynes and Brian Canavan Left: Ian Grehan, David Hickey and Kate Frowein

Left: Michael Monahan and Nicole Dillon

Left: Deborah Crowley and Mark Felton Far left: Mary Needham and Siobhan Hayes

62 the Parchment

Summer 2024 dsba.ie Photography: Conor Healy

Right: Sharon Oakes and Lorna Verdon

Left: Ollie Shannon and John Collins Far left: Patricia Hickey and Marie Gormley

Right: Olive Doyle and Aileen Curry Far right: Anne Marie Keane and Christina Duffy

Left: Tony Sheil and Michael Monahan Far left: Fiona O’Dwyer and Muriel Moore

the Parchment 63

DSBA Litigation Seminar

The DSBA’s Litigation Committee hosted a Personal Injuries seminar on the 27th June 2024.

The speakers were Hilary McGouran, Head of Mediation at the Injuries Resolution Board, Shane English BL and Daragh O’Sullivan of Lowes Cost Accountants. The Seminar was chaired by Mr. Justice David Nolan.

Photography: Conor Healy

Left to right: Shane English BL, Mr. Justice David Nolan and Hilary McGouran

Left: Elaine Hickey, Stuart Gilhooly and Shane English BL Far left: Mary Claire Coakley and Peig Lenehan

Right: Kerrie Dunne, Sandra Drennan and Maria Lakes Far right: Monika Kealy, Ruth Foy and Shona Goring

Left: Lauren O’Driscoll, Aoife Conway and Diarmuid Harnett Far left: Noel Gallagher, Deirdre Munnelly and Laura Prenderville

64 the Parchment

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