Parchment Summer 2025

Parchment D S BA.IE

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D UB LIN SOLICITORS B AR ASSOCIATION MAGAZ INE | S UM M E R 2 025 | ISSU E 103

NEW LAW TRANSFORMS ORGAN DONATION New era for organ, tissue and cell donations

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Summer 2025 dsba.ie

From the Editor

T

he Government’s recent decision not to accept the Judicial Council’s recommendation to adjust personal injury awards for inflation highlights the pressure it faces from all sides none more so than from the insurance industry, which has raised concerns about the potential impact on premiums and business costs.

Personal injury awards in the courts dropped by nearly half last year, according to the Courts Service’s annual report. Its 2024 report published recently shows personal injury awards levels reduced by 45 per cent compared to 2023. The number of new cases, at almost 13,000, was down by about 445 on 2023, but 41 per cent down on the almost 22,000 cases lodged in 2019. The Injuries Resolution Board stated recently that personal injury claim numbers have significantly decreased with a substantial reduction of 35 compared to 2019.

Will the insurance industry pass on its massive savings to consumers and we will see marked decreases in premiums I think you know the answer.

As the Personal Injuries Guidelines remain the same since 2021, there is a real concern that those who have suffered serious injuries will be conse uential under compensated.

Another matter of concern in practice is that the ecision Support Service ( SS) continues to face profound challenges with only 121 decision-making agreements and just 114 co-decision-making agreements being registered up to June 2025. These applications must be made via the SS online portal. Practitioners dealing with the registration of Enduring Power of Attorney’s via the SS portal will know, it is very difficult for those with full capacity to navigate. Those with capacity challenges are finding themselves at sea.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2024/2025

CIARA O’KENNEDY Honorary Secretary & Chair of Employment Committee

AVRIL MANGAN Honorary Treasurer & Chair of Practice Mgt Committee

EIMEAR O’DOHERTY Chair of Inhouse Solicitors Committee

PATRICK LONGWORTH

ÁINE GLEESON Chair of Property Committee

CLIONA COSTELLO Chair of Family Law Committee

MARCUS HANAHOE Chair of Litigation Committee

ZOE HUGHES

AILEEN CURRY Chair of Mental Health & Capacity 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.

NIALL CAWLEY DSBA President

PAUL RYAN DSBA Vice President

JOAN DORAN Programmes Director

JESSICA HICKEY Chair of Commercial Law Committee

CIARA HALLINAN Chair of Criminal Committee

STEFAN O’CONNOR Vice Chair of Practice Management

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.

the Parchment 1

Summer 2025

Contents 6

New Law Transforms Organ Donation Jenny Foley and Thomas McInerney examine the Human Tissue Act which will have profound implications for individuals and healthcare providers

8

The winners of the DSBA Law Book Awards were announced and celebrated recently. Keith Walsh SC reports on the annual event and winners

DSBA’s Guiding Light

24

Damages for Defamatory Online Posts

DSBA President Niall Cawley is interviewed by Kevin O’Higgins

Audrey Byrne, Bébhinn Bollard and Conal O’Doherty outlined how the High Court has provided further guidance on the appropriate metrics for the assessment of damages

28

Circuit Court and Capacity Áine Hynes SC outlines the key steps in bringing Assisted Decision Making and Capacity Applications before the Circuit Court and offers practical guidance for practitioners

30

Court Digital Rules Published The Digital Rules have been published and we outline them in this article

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

DSBA’S GUIDING LIGHT... NIALL CAWLEY

DSBA Law Book Awards celebrate Legal Authors

16

Changes in work practice have resulted in less face to face communication and meeting our colleagues and getting to know our colleagues has become more difficult as a result of that

16

Summer 2025 dsba.ie

Contents

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

32 32

Tackling the Law

36

Reforming Ireland’s Planning System

DSBA In-House Committee’s Kevin O’Higgins interviews Yvonne Nolan, General Counsel, Federation at World Rugby

Michelle Martin analyses the key reforms introduced in the Planning and Development Act 2024

40

Receivership Appointments Under Scrutiny Ade Oluborode BL explores the growing judicial scrutiny surrounding the appointment and conduct of receivers

44

Binding Agreement via WhatsApp or Emoji?

48

Family Law Trends

52

Conveyancing and Climate Change

Mark Thompson reviews recent legal cases which have highlighted the potential for these informal methods to create legally binding contracts

36

Keith Walsh SC reviews the latest figures published by the Courts Service in July 2025

Michael Carrigan explores how new guidance from the Law Society of England and Wales is reshaping the responsibilities of property solicitors

54

Residential Tenancies Reform New Government reforms aim to boost rental supply while tightening tenant protections

44 the Parchment 3

Message from the President

Stronger Together

M

ay I welcome you all to the summer edition of The Parchment, and express my sincere thanks and appreciation to our editor, John Geary, and to all the members of our Association, Council, our committees, and the many others who support and assist us throughout the year. Your dedication and time are invaluable to the work of the DSBA. In addition to our ongoing Education Programme for members, we continue to prioritise the promotion of collegiality among our colleagues. I would particularly like to thank the organisers of our Annual Book Awards, which recently recognised the achievements of so many outstanding legal writers who contribute so richly to the body of legal knowledge available to us.

I am also grateful to all who attended our Annual Dinner at the Westbury Hotel. Your presence helped make the evening a great success. We now look ahead to our Annual Conference in Rome on 18th September, which has been very warmly received.

As President of the DSBA, and having ualified almost 40 years ago, I am acutely aware of how our profession has changed.

The ways in which we work have evolved significantly, and the pressures placed upon us in our daily professional lives have grown.

More and more of our work is done remotely, whether away from our colleagues or outside our traditional workplace. This shift, while often necessary, can create a sense of detachment and increase the risk of isolation. Now more than ever, engaging personally with one another remains vital.

The DSBA is committed to addressing these challenges. Beyond our education and formal events, we continue to promote connection and collegiality through our sporting and social activities. Recent highlights include our soccer tournament, our cricket match with the Bar, our golf events, and the recent quadrangle tournament in Lyon with our colleagues from Belfast, Liverpool, and Lyon. I would like to acknowledge and thank the organisers for their dedication and effort.

Taking the time to engage with one another, to be kind, and to take an interest in each other’s wellbeing cannot be overstated. Our work is important, but so too are our relationships. The ability to rely on and support one another, while always upholding our duties to the Courts 4 the Parchment

and our clients, is a cornerstone of a healthy profession.

We continue to represent the interests of our members in our engagements with Tailte Éireann, Revenue, the Courts Service (via the Court sers roup), the Probate ffice, and other key stakeholders. ur work with the Law Society and the LSRA also continues, and we are pleased to maintain positive and productive relationships with both bodies.

Finally, I would like to thank all those on Council, our Past Presidents, and the many members who serve on Committees. Your contributions are what make the work of the DSBA possible.

It is a privilege to continue serving as your President, and I look forward to the months ahead.

Niall Cawley, DSBA President

N

EW

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New Law Transforms Organ Donation The Human Tissue Act brings with it an entirely new landscape for organ donation in Ireland. Jenny oley and Thomas cInerney examine this significant piece of legislation which will have profound implications for individuals and healthcare providers

T

he initial stage of the phased commencement of the Human Tissue (Transplantation, Post- ortem, Anatomical Examination and Public isplay) Act 2024 commenced on the 17 June 2025.

The first phase primarily addresses organ, tissue and cell donation and transplantation, and in doing so, fundamentally alters the consent model for the benefit of those in need of potentially life-saving transplants.

Key Provisions 1. “Opt-out” system The concept of deemed consent introduced under the new system is set out in Chapter 2, Section 18. The Act provides that a person who dies shall be deemed to consent to the donation of their relevant organs where they have not registered an objection to such donation.

The concept of relevant organs refers to the liver, lung, pancreas, heart or kidney.

Those who wish to maintain the status uo in terms of the potential medical use of their organs on their death now need to take active steps to do so. A new 6 the Parchment

opt-out register, to be managed by the HSE, came into effect on 17 June. An objection on the Register remains there for the lifetime of that person if it is not withdrawn. The details of the Register will not be made public. or all other organs, tissues, or cells, consent will be sought from a family member as was previously the case.

Crucially, the opt-out system will not apply in the following circumstances i. Where the deceased was not ordinarily resident in Ireland for twelve months prior to death ii. Where the deceased lacked the capacity to understand deemed consent in the absence of an objection iii. Where a designated family member cannot be identified or confirmed iv. Where the deceased is a child.

2. Final consent of the designated family member The Act maintains the pre-existing safeguard in the law on organ donation in re uiring a medical practitioner, where a person has not registered an objection, to

Summer 2025 dsba.ie Jenny Foley is a partner practising in RDJ’s Healthcare Litigation team. Thomas McInerney is a solicitor with RDJ in Galway

satisfy themselves that the designated family member of the person has confirmed that he or she does not have any objection to the donation of the relevant organ.

A designated family member is defined as a spouse, cohabitant, close friend or other close family member as listed in the act.

This provision underscores the importance of communicating one’s wishes during one’s lifetime particularly now where one might believe they have done all they need to do by not opting out.

3. New pathway for living donation A living person who donates an organ to someone they do not know is considered a non-directed altruistic donor. Previously, there was no means to do so in Ireland and individuals travelled north or overseas.

The Act now provides specific conditions which will allow a medical practitioner to remove an organ for such purposes. These conditions cover issues such as consent, the purpose of the transfer and compensation for the organ which is explicitly forbidden, be it financial compensation or otherwise.

Healthcare Law

nder the Act, an Independent Panel will be established which will consider, among other types of donations, applications for non-directed altruistic donations.

Conclusion The first phase of commencement of the Human Tissue Act is a welcome development for those who are willing to be a donor but who may not have taken the necessary steps of their own accord, those who might be lucky enough to benefit from such a donation, and those medical practitioners who now have some clarity on issues of consent as well as a framework for living donation.

It remains to be seen when the remaining provisions of the Act will be commenced. These provisions concern, among other things, post-mortem practices and procedures and anatomical examination. Alongside the awaited reforms to the Coroners Act, this is an area of law in flux. It is hoped that the reforms discussed herein and those to come can better manage the current demands in this sensitive and often emotional area of practice. P

The Act provides that a person who dies shall be deemed to consent to the donation of their relevant organs where they have not registered an objection to such donation the Parchment 7

Keith Walsh, Chair of Judging Panel; Martin McCann, Thomson Reuters; Louise Crowley, author; Marianne Joyce, author; Rossa Fanning SC, Attorney General; Niall Cawley, President DSBA; Stephen Fitzpatrick, Peter Fitzpatrick & Co.

DSBA Law Book Awards Celebrate Legal Authors The winners of the DSBA Law Book Awards were announced and celebrated at a dinner hosted by DSBA President Niall Cawley at the Kildare St. and University Club, St. Stephen’s Green on the 10th April 2025. Keith Walsh SC reports on the annual event and winners

8 the Parchment

Summer 2025 dsba.ie Keith Walsh SC is a Dublin solicitor practising primarily in the area of family law and family disputes. He is a former President of the DSBA

DSBA Law Book Awards

Caption

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t a gala awards night, the DSBA President Niall Cawley and the Guest of Honour, Attorney General Rossa Fanning SC congratulated the winning authors on their hard work and devotion to producing their excellent legal tomes as well as highlighting the debt owed to all legal authors by practising solicitors and barristers who benefit daily from their efforts.

The dinner and awards were sponsored by Peter Fitzpatrick & Co. Legal Cost Accountants, represented by Stephen it patrick, Legalbooks.ie Legal and General Shop, Four Courts represented by John Hogan and Jackie Clarke, and the awards were produced in collaboration with Law Society Skillnet represented by Carol Plunkett. The judging panel comprised Stuart Gilhooly SC, Aine Hynes SC, John Geary and was chaired by Keith Walsh SC. As the book awards are still catching up post covid, books published in 2023 and 2024 were eligible for the awards and there were three categories Irish Law Book of the Year for 2023 and 2024, Practical Irish Law ook for 2023 and 2004 and utstanding Contribution to Legal Scholarship.

Shortlisted books for the DSBA Irish Law Book of the Year 2023 & 2024 1. Delany and McGrath on Civil Procedure, 5th Edition. Authors: Hilary Biehler, Declan McGrath, Emily Egan McGrath, Aoife Beirne and Gerard Downe. Publisher: Thomson Reuters.

2. Art & Cultural Heritage Law. Author: Martin Bradley. Publisher: Clarus Press.

3. Procurement Law, 2nd Edition. Author: David Browne. Publisher: Thomson Reuters.

4. Privacy Law in Ireland. Author: Róisín Á Costello.

Publisher: Bloomsbury Professional.

5. Family Law 2nd Edition. Authors: Louise Crowley and Marianne Joyce. Publisher: Thomson Reuters.

6. Education and the Law, 3rd Edition. Author: Dympna Glendenning. Publisher: Bloomsbury Professional.

7. Family Law in Context. Authors: Dr Maebh Harding and r eirdre c owan (editors).

Publisher: Clarus Press.

8. A Century of Courts, The Courts of Justice Act 1924. Author: Niamh Howlin, editor. Publisher: Blackhall Publishing.

9. Barristers in Ireland: An evolving profession since 1921.

Author: Niamh Howlin. Publisher: Four Courts Press.

10. A Guide to Trademark Law and Practice in Ireland, 2nd Edition. Author: Helen Johnson. Publisher: Bloomsbury Professional.

11. Housing: Law & Practice. Authors: Neil Maddox BL and Finn Keyes BL. Publisher: Clarus Press.

12. Employment Law 2nd Edition. Author: Frances Meenan. Publisher: Thomson Reuters.

13. The Law of Statutory Audits. Authors: Dáibhí ’Leary. Publisher loomsbury Professional.

Louise Crowley, author, and Marianne Joyce, author

Winner Irish Law Book of the Year 2023 & 2024 Family Law 2nd Edition. Authors: Louise Crowley and Marianne Joyce. Publisher Thomson Reuters.

Sponsors of this year’s Irish Law Book Awards are Peter Fitzpatrick & Co., Legal Costs Accountants and legalbooks.ie.

Law Society Skillnet is a collaborative partner of the DSBA for this year’s Book Awards.

Legal & General Shop Four Courts

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Keith Walsh, Chair of Judging Panel; Carol Plunkett, Law Society Skillnet; David McCartney, Clarus Press; Dr. Miriam Delahunt B.L., author; Rossa Fanning SC, Attorney General; Niall Cawley, President DSBA; Sandra Mulvey, Bloomsbury Professional; Emma Slattery B.L., author; and Grainne McMahon, Bloomsbury Professional

Joint Winners DSBA Practical Irish Law Book of the Year 2023 & 2024 1. Vulnerable Witnesses and Defendants in Criminal Proceedings. Author: Dr. Miriam Delahunt B.L. Publisher: Clarus Press.

2. The ssisted Decision-Making andbook. Author: Emma Slattery B.L. Publisher: Bloomsbury Professional.

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Shortlisted books for the DSBA Practical Irish Law Book of the Year 2023 & 2024 1. Use of Force: Law & Practice. Author: Cillian Blake.

Publisher: Clarus Press.

2. Landlord and Tenant Law: the Commercial Sector, 2nd Edition. Author: Mema Byrne. Publisher: Thomson Reuters.

3. Criminal Defence Representation at Garda Stations.

Authors: Vicky Conway, Yvonne Daly. Publisher: Bloomsbury Professional.

4. Vulnerable Witnesses and Defendants in Criminal Proceedings. Author: Dr. Miriam Delahunt B.L. Publisher: Clarus Press.

5. Coroners: Practice and Procedure, 2nd Edition. Author: Dr. Brian Farrell. Publisher: Thomson Reuters.

6. Gibbons on Trade Mark Law, 3rd Edition. Author: Glen Gibbons. Publisher: Clarus Press.

7. Irish Family Law Handbook, 7th edition. Authors: Deirdre Kennedy, Elizabeth Maguire. Publisher: Bloomsbury Professional.

8. Protected Disclosures Act 2014, 2nd Edition. Authors: Anthony Kerr, Lauren Kierans. Publisher: Thomson Reuters.

9. Lyall on Land Law, 5th Edition. Author: Dr Noel McGrath. Publisher: Thomson Reuters.

10. Criminal Legislation in Ireland, 4th edition.

Author Lynn ’Sullivan. Publisher loomsbury Professional.

11. The Law of Personal Insolvency, 1st Edition. Authors: Keith Rooney, Eoin Martin. Publisher Thomson Reuters.

12. Entertainment & Media Law Ireland. Author: Simon Shire. Publisher: Clarus Press.

13. The ssisted Decision-Making andbook. Author: Emma Slattery B.L. Publisher: Bloomsbury Professional.

Summer 2025 dsba.ie

DSBA Law Book Awards

Photography: Mark Harrison

Keith Walsh, Chair of Judging Panel; John Hogan, Legalbooks. ie & Legal & General Four Courts Shop; Dr. Niamh Howlin, author; Rossa Fanning SC, Attorney General; and Niall Cawley, President DSBA

The S A Irish Law ook of the ear 2023 and 2024 was awarded to Professor Louise Crowley and Marianne Joyce for the 2nd edition of Family Law, published by Thomson Reuters. The judges described this book as “an invaluable and necessary resource for Irish family lawyers, judges, academics, court staff which is a worthy successor to Shatter’s leading work on Family Law”.

There were joint winners of the DSBA Practical Irish Law ook of the ear 2023 2024 - Emma Slattery .L. for the Assisted ecision- aking Handbook published by Bloomsbury Professional and Miriam Delahunt B.L. for Vulnerable Witnesses and Defendants in Criminal Proceedings published by Clarus Press. The judges said of the Assisted ecisionMaking Handbook: “Ms. Slattery in her comprehensive text on ssisted Decision Making has identified and filled a significant gap in practice and procedure for lawyers in this relatively new area of practice, this book is authoritative, practical and easy to use and the author display her considerable expertise and scholarship lightly.”

The judges said of Vulnerable Witnesses and Defendants in Criminal Proceedings: “This book is of immense practical assistance to lawyers, judges, witnesses and all those involved in dealing with the evidence of children, persons with an intellectual disability and complainants / witnesses involved in sexual or violent offences in the criminal justice system. It is a book that has filled a gap in current practice and is likely to remain useful for some considerable time. Dr. Miriam Delahunt B.L. is to be commended for her practical explanations and expertise in this area and to her contribution to effectively increasing access to justice for children and those with an intellectual disability in the criminal justice system by her clear exposition of the law in this area.”

Dr. Niamh Howlin was unanimously awarded the utstanding Contribution to Legal Scholarship. This award is not open to nominations and is one where

Winner Outstanding Contribution to Legal Scholarship for 2023 and 2024 Dr. Niamh Howlin for Barristers in Ireland: An Evolving Profession Since 1921 and A Century of Courts: The Courts of Justice Act 1924, both published by Four Courts Press.

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Keith Walsh, Judging Panel; Avril Mangan, DSBA; Stuart Gilhooly SC, Judging Panel and John Hogan, Legalbooks.ie & Legal & General Four Courts Shop

the judges selected the winner based on the quality of their work in 2023 and 2024. The judges said that r. Howlin’s work arristers in Ireland An Evolving Profession since 1921, is an important contribution to the history and recent evolution of the legal profession in Ireland and is based on archival research as well as a large number of semi-structured face to face interviews with practising and former members of the Bar. Howlin notes that each interview took typically 90 minutes and generated about 30 pages of typed text. Dr. Howlin has taken the period 1921 to 1999 as the focus of her text and as she puts it: “For an institution often criticised for being slow to evolve, it is remarkable to compare the 1921 Bar with the Bar which existed eighty years later. As will be demonstrated in chapter five, the typical new barrister in 2 was a 2 -year-old, middle class, rotestant, Dublin man, who worked at a desk in the Four Courts Law Library. By 1999 the typical new barrister was a Catholic in his or her early twenties, working in a satellite building near the Four Courts, who was more likely than their 1921 counterpart to be from outside of Dublin.”

While for many of those who were not practising law in 1999, the last century may seem a very long time ago and as Sara Phelan SC and Hugh ohan SC point out in their capacity as then Chair of 12 the Parchment

the Council of the ar of Ireland and Chair of the Council of the Honourable Society of ings Inns, in their foreword, 32 people were called to the Bar in 1921 and by 1999 membership of the Law Library had risen to c. 1,185. In 2023 there were 2,100 members and 36 were female. An understanding of the Bar after independence and until it entered the 21st century is of huge interest and assistance to any solicitor and those trying to understand how and why the legal profession in Ireland works as it does in 2025.

The book was described by the judges as a very enjoyable read; for example, in describing the difference between the various Circuits, Howlin reports, based on her research: “There were certainly reputational differences between circuits. The Eastern Circuit, for example, was said to be ‘unfashionable’ in the 1940s: “Because it was near Dublin, its denigrators said that it was full of trespassers who came in for a day and were not real circuiteers. Many of the towns were close to Dublin and, with proper transport, there was no need to spend a week in a hotel. There was therefore no mess, no circuit wine cellar and no silver.”

By contrast, the Midland Circuit was described as ‘a hard living, hard drinking establishment’ and

Summer 2025 dsba.ie

DSBA Law Book Awards

Louise Gallagher, solicitor; Professor Louise Crowley, author; Marianne Joyce, author and Alma Collins, Marianne’s mum

Aine Gleeson, DSBA Council and Joe O’Malley, DSBA Past President

Grainne McMahon, Bloomsbury Professional; Joan Doran, DSBA Council and Emma Slattery B.L, author

Niall Cawley, DSBA President; Kevin O’Higgins, DSBA Past President and Rossa Fanning SC, Attorney General

the Western as ‘colourful’, suggesting that both had strong drinking cultures. Many characterised the Leinster Circuit as formal; one said it was for ‘posh people’, another that it conformed too much to more traditional ideas. It had its own set of silver for formal dining right into the seventies and eighties.

The level of formality on the Leinster Circuit was such that one was considered a ‘probationer’ for their first year or so and had to dine a certain number of times in the late sixties.”

In relation to networks and socialising at the ar, Howlin quotes an anonymous barrister in support of her point that in addition to relationships between barristers being common those between barristers and solicitors were also fairly common: “So you’re hanging around and there’s a good-looking woman solicitor there and you’d go and talk to her you, preferable to the musty auld fellow who was a friend of my Da… I would say women solicitors were a focus for male barristers… they’re… women you’re most likely to meet.”

When examining perceptions of the barristers’ profession, Howlin quotes Rex Mackey, who wrote in the 1960s in his much-read chronicle of the ar as it was then, Windward to the Law: “One of the many misconceptions the layman has about a barrister’s life is that he is constantly the recipient of

the humble thanks of grateful clients. Nothing could be further from the truth, and the barrister who does not obtain his fee in a criminal case before he goes to court is due for a rude awakening. On this topic the advice of one of the best and most experienced defender of prisoners at the Bar was, ‘Always get it when the tears are in his eye.’”

Howlin also points out that there was a boom in the early 1990s in the publication of barristers’ memoirs and that Rex Mackey’s book was published in a second edition in the 1990s.

If r. Howlin had only published her book on the barristers’ profession, she would have deserved the award. However, she also edited and contributed to A Century of Courts: The Courts of Justice Act 1924 which was also the subject of a commemoration at an event in Dublin Castle on 12 April 2024 - exactly one hundred years after the enactment of the Courts of Justice Act 1924. This book and the event arose as a result of collaboration between C , the Irish Legal History Society and the Courts Service.

As Robert D. Marshall points out in the book, the 1924 Courts Act was a constitutional statute which put flesh on the bones of the 1922 Constitution as it related to the courts system and it established the basic structure of our courts the Parchment 13

Joe O’Malley, Past President DSBA; Mr. Justice David Barniville, President of the High Court, Contributor to A Century of Courts: The Courts of Justice Act 1924 and Kevin O’Higgins, DSBA Past President

Susan Martin, Past President DSBA and Trea McGuiness, DSBA

Ciara O’Kennedy, DSBA Council and Niall Cawley, President of the DSBA

Robert D. Marshall, Contributor to A Century of Courts: The Courts of Justice Act 1924 and Mr. Justice Gerard Hogan, Supreme Court, Contributor to A Century of Courts: The Courts of Justice Act 1924

system to which there has only been one addition namely the Court of Appeal in 2014. Howlin herself best describes the book in her introduction: “While several chapters are devoted to explaining the new legal structures and the shape of the new judiciary, this book is more than a description of a new courts system, the authors have gone further than mere description. They have woven compelling narratives shedding light on the forgotten stories, dramas, innovations and concerns of the 1920s. They have brought individual legal actors to life, and they have vividly described what it was like to be a judge, a lawyer or a litigant in the new courts. They have, in short, illuminated an aspect of twentieth century Irish legal history that hitherto received little attention. They have done so by making use of a wide range of archival and manuscript sources, as well as contemporary newspaper reports and published scholarship.

Collectively, the chapters in this book invite the reader to consider what we think we know and to re ect on a century of change.”

The contributors to A Century of Courts were Diarmaid Ferriter, Mr. Justice Maurice G. Collins of the Supreme Court, Evan McGuigan, Blathna Ruane SC, Robert D. Marshall, Daire Hogan, Laura Cahillane, Niamh Howlin, President of the District Court Paul elly, Lynsey lack, anielle C. Jefferis, Kevin Costello, Ms. Justice Patricia Ryan, President 14 the Parchment

of the Circuit Court, Mr. Justice David Barniville, President of the High Court, Mr. Justice Donal ’ onnell, Chief Justice, ark Coen, s. Justice Una Ni Raifeartaigh, Judge of the ECHR, Roisin A. Costello, Hilary Biehler, Brice Dickson and onal . Coffey. ne theme emerging from A Century of Courts is that although some things change, some things remain the same. This is borne out, in particular, in evin Costello’s chapter Twenty-six High Courts’: the Circuit Court, Decentralisation and its pponents, 1924-34. Here Costello chronicles the Bar’s opposition to the diversion of legal business away from the centre in Dublin and towards the new Circuit Court system, the Bar’s concern at the perceived high level of the limit of this new jurisdiction (three hundred pounds in tort and contract). ue to the opposition of the ar and its allies, the new Circuit Court Rules were not introduced until 1931, seven years after the creation of the new Circuit Court. As Costello concludes: “In the end, despite the catastrophising of the Bar Council, decentralisation to the Circuit Courts did not affect the supply of nglish commercial credit; the 00 jurisdiction did not result in barristers permanently deserting the law library for a life of legal ignorance in backwater country

Summer 2025 dsba.ie

DSBA Law Book Awards

Robert Fitzpatrick SC; Dr. Niamh Howlin, author; Daire Hogan, solicitor, Contributor to A Century of Courts: The Courts of Justice Act 1924

Alma Collins and Marianne Joyce, author

Aine Hynes SC, Judging Panel and Avril Mangan, DSBA Council

Sonya Dixon B.L., Niall Cawley, President DSBA and Stephen Fitzpatrick, Peter Fitzpatrick & Co.

towns, and the Four Courts did not disintegrate into twentysix little high courts.”

As if to further emphasise her ualifications for this award, Dr. Niamh Howlin published a further book in arch 2025 A History of the irector of Public Prosecutions 1975-2025 and she is due to publish Confluences of Law and History Irish Legal History Society iscourses, 2011-2021 which she edited jointly with . . Larkin. ther notable work that she has undertaken includes receiving a Research Impact Case Study for her work which contributed to the President of Ireland issuing a posthumous pardon to yles Joyce, [the aamtrasna murders] who was wrongly hanged for murder in 1882. The case was heard in English without any translator present even though Joyce could only speak Irish. In 2021 r. Howlin provided an expert report on the 1895 trial of John Twiss which led to the granting of another Presidential pardon on 16 ecember 2021. In 2024 her report into the trials of Sylvester Poff and James arrett formed the basis for two more posthumous pardons by President Michael D. Higgins.

Well done to all the shortlisted authors and publishers, the judges, with thanks to the sponsors and our host DSBA President Niall Cawley and guest of honour Rossa Fanning, SC, Attorney General. P

David McCartney, Clarus Press; Dr. Miriam Delahunt B.L.; Zoe Hughes, DSBA Council and Martin McCann, Thomson Reuters the Parchment 15

16 the Parchment

Summer 2025 dsba.ie Kevin O’Higgins is principal of Kevin O’Higgins Solicitors, Blackrock. He is a former President of both the Law Society and the DSBA. He is a former editor of the Parchment

Interview

DSBA’s Guiding Light DSBA President Niall Cawley has old school values of empathy, decency, and concern for others. Here he shares a ride with Kevin O’Higgins where they discuss the profession, and Kevin gives an insight into how it is to work alongside him

A

t some stage during a DSBA President's year, he or she is sat down and told the time has come for The Interview - no ifs or buts, it is happening whether you like it or not, “No” you will have no say over content, and it's happening imminently!

And so, having dealt with the futile protestations, our current president Niall Cawley has yielded to the inevitable and sat down with me for this interview conducted in a Dublin taxi as we both made our way to a DSBA function in late June.

For this writer, having enjoyed the privilege of working cheek by jowl alongside him for over 15 years, I am perhaps, especially well placed to do so.

Our shared work village is the charming maritime idyll of Blackrock where the views across the bay are stunning. Yet access in and out to the city is a mere 20 and 30 minutes or less. I have been plodding away here close on 30 years, and Niall a little longer. An opportunity had, then, presented itself for me to cohabit with en yrne (since retired)

It is a model of working that I have always heartily recommended to colleagues and indeed I was involved in the preparation of the Overhead Sharing Agreement as a precedent for the S A reflecting the experience I had which has always been good

at the other end of the Village. It was an opportunity, then, for a group of us sole practitioners (with Pat Igoe also joining) to work in a collaborative manner - yet without affecting our own respective autonomies, or independence.

Niall had been in that arrangement with Ken for some years and I had operated along with Pat Igoe elsewhere in the Village with Gerry Lambe. And so, it had been a win/ win for each of us with shared facilities pooling of resources but most importantly camaraderie the sharing of know how problem solving and an in-house solution to conflicts of interest scenarios. Throw in then the unheralded bonus and convenience of a commissioner for oaths under the same roof, as well as in Niall’s case a notary, then it becomes the bespoke practice model for the sole practitioner or small practice. We respect each other’s client boundaries and not least the confidentiality of each other’s business.

Niall views such arrangement as positive.

“It is a model of working that I have always heartily recommended to colleagues and indeed I the Parchment 17

ou just took up whatever file was thrown your way and got on with it, learning by mistakes and cock ups along the way but always having someone like (the late) Joe Swords to keep you right was involved in the preparation of the Overhead Sharing greement as a precedent for the DSB re ecting the experience I had which has always been good.”

Of course, it is not a given that Practice Cohabitation will work for everyone. Much depends on the dynamics of the personalities involved, how they gel and respect each other and are they the type you’d like to have a coffee or pint with Personally, to be working alongside Niall is akin to having your Guardian Angel by your side every hour and throughout your working day!

Not only is he a brilliant solicitor, someone who will invariably have the right answer to whatever legal issue has you in a flap - but he will then astutely offer a solution in a calm and diffusing manner so that you’re left in an elixir of tranquillity as 18 the Parchment

yet another problem evaporates and melts away. ut what’s more, Niall is the go-to guy for anything that needs mending, fixing, rebooted, debugged, set up, assembled, programmed, tested or run. He is everything in that space that I am not, nor in fact, are any of us within the building. Frankly, I can’t imagine how I would have navigated this rapidly changing technological landscape without Niall’s sage hands on advice - at every beck and call, always selflessly given whenever asked. In fact (and this is so true), I am asked at least five times a day “ m I all right. Can I assist with anything?!” And I hear the same uestion posed to all the other office users.

So who is this heavenly person and what part of the stratosphere did he come from?!

Well, Dublin is the answer, where his family moved around a bit and ultimately he

completed his leaving cert cycle as a boarder in Blackrock College, up the road. Not that he was drawn there for the rugby or other sporting reasons as he was more bookish and sporting activity was never his thing. Trinity then beckoned where he did law and found his tribe and enjoyed all that university life had to offer.

Then when having to venture out into the big bad world he fell on his feet with his choice of Master in Gabriel Haughton, a doughty Dun Laoghaire practitioner who launched many a legal career from trainee solicitors (to mention a few) in Ronnie Lynam, Ken Byrne, Gerry Lambe, Joe Swords and Niall himself.

“Gabriel’s philosophy was to give us the work but to let us find our way even if it meant that we got a bit of a battering along the way.” A sort of learning by doing mantra which, while not appreciated in the moment, Niall, in retrospect, saw as defining.

“You just took up whatever file was thrown your way and got on with it, learning by mistakes and cock ups along the way but always having someone like the late oe Swords to keep you right. My apprenticeship with Gabriel involved my working for the first couple of years in a room shared with oe who was an apprentice in the

Summer 2025 dsba.ie

Interview

Photography: Bryan Meade

o ce and who was about three months ahead of me. s a conse uence, he was the font of all knowledge when it came to asking uestions. oe was an excellent lawyer who was taken from us long before his time and I often think of him.”

Having ualified in 1985 Niall spent another seven years with Gabriel, and, having astutely read the tea leaves, slipped away. He set up in Blackrock, eventually taking space alongside Ken Byrne in a prominent Main Street building which Ken had developed with the panoramic setting.

“I am very happy to say that I left on excellent terms with Gabriel and any files that I brought in leaving the practice that I had introduced he was happy to share with me and indeed Gabriel subse uently sent me work and some of his clients also did.

“I had opened my own practice in Brookfield Terrace in Blackrock in October of and did so with a paltry files. Our retired colleague, en Byrne and I had been friends since the time that Ken had worked in Haughton’s so when I opened my own practice I was aware that Ken was renovating the o ces that he had on the Main Street, Blackrock and he invited me to come and overhead share with him. Ken and I commenced overhead sharing therefore in uly and that model has been followed ever since.”

Ken will be familiar to many older colleagues. Yes, that Ken, with the striking moustache and whose choice of travel has always been the motor bike. As Niall says, “Ken has always been the consummate colleague, and I am to say a good friend and his support and assistance over the years we worked together have been vital to me.”

I ask Niall to look into the crystal ball and to answer the perennial question whether private practice has a future. He answers thoughtfully: “We live in what might be regarded as remoter times in that the use of technology and the changes in work practice have resulted in less face to face communication and meeting our colleagues and getting to know our colleagues has become more di cult as a result of that.”

However, warming to the topic he then goes further: “Indeed, even within individual work places remote working has added to this cycle and organisations therefore like the DSB are essential in promoting not just the wellbeing of the solicitor’s profession but in promoting collegiality and face to face contact through the organisation of social events and seminars. Of course, the DSB continue to represent the profession to the best of its ability going forward and again it is an organisation I am proud to work for and proud to represent.”

And so, with our taxi ride completed we both arrive at our DSBA event with Niall happy to mingle and meet our colleagues, listening, supporting, encouraging, and enquiring how he can help! P

We live in what might be regarded as remoter times in that the use of technology and the changes in work practice have resulted in less face to face communication and meeting our colleagues and getting to know our colleagues has become more difficult as a result of that the Parchment 19

Naoise Duffy is a Solicitor at McGrath Mullan, specialising in immigration law

Immigration Law

New Clarity on Irish Citizenship Clients with Irish ancestry or close Irish family ties may now have a clearer route to Irish citi enship under newly published guidelines, writes Naoise uffy

N

ew guidelines recently published by the epartment of Justice have clarified the re uirements to ualify for citi enship under Section 16 of the Irish Nationality and Citi enship Act 1956, which allows the inister for Justice to set aside the usual re uirements that apply when seeking citi enship (such as the residency re uirements) if a person can show they are of Irish descent or have Irish associations.

There are three re uirements that need to be met to ualify under Section 16

1. Prove Irish descent or Irish associations The first step is to show that you are of Irish descent or have Irish associations’.

Irish descent includes direct lineal descendants of a person who is, or was at the time of their death, an Irish citi en such as great-grandchildren of Irish citi ens.

Irish Associations’ includes anyone who is related to someone who is (or is entitled to be) an Irish citi en, or someone who was (or was entitled to be) an Irish citi en at the time of their death, through • Blood this includes parents or grandparents of an Irish citi en child or siblings of an Irish citi en.

• Affinity where a person is related to an Irish citi en by marriage this includes the spouse and the spouse’s immediate blood relatives (such as their parents or siblings).

• Adoption where the adoption is recognised under the Adoption Act 2010, or was based on legitimate legal processes where the child’s welfare was paramount.

• Civil partnership where the civil partnership is registered under the Civil Partnership and Certain Rights and bligations of Cohabitants Act 2010 (the 2010 Act) or recognised under Section 5 of the 2010 Act.

2. Prove a sufficiently ‘strong connection’ to Ireland After Irish descent or Irish associations have been proved, a person must then show that they have a sufficiently strong connection to Ireland.

The inister for Justice will decide this by looking at four different categories Experiential connection to Ireland amily connection to Ireland Cultural connection to Ireland Establishment in Ireland or each of these categories there are specific factors that will be considered, including whether a person has Lived in Ireland or visited Ireland fre uently in the last 10 years Any family members who are Irish citi ens and ordinarily resident in Ireland Contributed significantly to the Irish nation, such as through volunteer work, artistic or sporting endeavours, supporting Irish diaspora or promoting Ireland abroad, etc.

Any ualifications from Ireland An active Irish driving licence or bank account Each of these factors is worth a specific number of points an application will only be considered to have a strong connection’ if it has at least 50 of the total available points in at least two of the four categories listed above.

3. Minister for Justice must be satisfied the relevant statutory naturalisation conditions can be waived nce a person has established that they have Irish descent or Irish associations and a sufficiently strong connection’ to Ireland, the inister for Justice will assess their case and decide whether the usual conditions for naturalisation should be waived such as the re uirement to have lived in Ireland for at least five years.

It is important to keep in mind that these applications are discretionary they are assessed on a case-by-case basis by the inister for Justice, and there is no guarantee of success even if all of the above criteria are met. P 20 the Parchment

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Left to right: Stephen Power, Mataka Flynn, Gerry Gallen, Mark Bergin, John Griffin, Aidan Buckley, Matthew Kenny, Jody Toner, Tony O’Sullivan, Richard Stowe, Tim McDowell and Owen Henson

DSBA Annual Cricket Match against the Bar The 27th of June saw Leinster Cricket Club host the annual John F. Buckley cricket match between the DSBA and the Bar

22 the Parchment

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he annual John F Buckley cricket match between the DSBA v The Bar of Ireland took place on the 27th June 2025 at the Leinster Cricket Club, Observatory Lane, Rathmines. The match is now in

its seventh year and the teams played for the John F Buckley trophy, named after the late John F Buckley who was a former DSBA President. Well done to all who participated in the event. P

Summer 2025 dsba.ie Photography: Mark Harrison

DSBA Cricket Event

Right: Front row: Ciaran Mandal, Gavin Miller, Alan Browne, Niall Buckley Back row: Tony Kerr, Kevin Roche, Jack Ryan, Diarmuid O’Leary, Andrew Corrigan, Martin Block, Ian Kavanagh Far right: Ciaran Mandal and Owen Henson

Left: Tony O’Sullivan Far left: Richard Stowe

Right: Jack Ryan, Kevin Roche and Diarmuid O’Leary Far right: Mark Bergin and Mataka Flynn

Left: Jack Ryan, Andrew Corrigan, Martin Block and Tony Kerr Far left: Jody Toner and Tim McDowell

the Parchment 23

Damages for defamatory online posts Audrey Byrne, Bébhinn Bollard and Conal O’Doherty outline how the High Court has provided further guidance on the appropriate metrics for the assessment of damages in two recent judgments involving publication of defamatory online posts

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he two recent judgments, Peter Casey v Kim McMenamin [2024] IEHC 705 and Stillorgan Gas Heating and Plumbing Limited v James Manning and Julie Manning [2025] IEHC 90 were delivered in default of appearance and illustrate the High Court applying the damages guidelines set out by the Supreme Court in Higgins v the Irish Aviation Authority [2022] IESC 13, signifying the continuing importance of these guidelines.

Peter Casey v Kim McMenamin Background Mr Casey sought damages for defamation in relation to a Facebook post by Mr McMenamin, the Defendant, which falsely accused r Casey of human trafficking and the inhumane treatment of refugees.

Mr Casey had developed accommodation for housing krainian refugees. n 25 April 2023 r McMenamin posted on Facebook: “We spoke to the workers and informed them that moving unvetted people around like cattle and then warehousing them in o ce cubicles for profit is akin to human tra cking and inhumane”. n 15 ay 2023, r Casey wrote to r c enamin requesting that the post be removed since it was defamatory and untrue and created a reasonable inference that the Plaintiff was involved in illegal human trafficking. After the post was not removed, Mr Casey issued High Court proceedings against the Defendant.

24 the Parchment

No appearance was entered nor were any steps taken by the efendant to defend his position. n 27 November 2023, the High Court entered judgment in default of appearance ordering the Defendant to remove the post in question and set the case down for hearing to assess damages.

Court Findings n 4 ecember 2024, having found that the post in question included defamatory wording and that there had been publication, Mr Justice Nolan delivered judgment on the assessment of damages.

Nolan J underscored the need to assess damages pursuant to section 31 of the efamation Act 2009 and pointed to the following factors: “The nature and gravity of any allegation and the defamatory statement concerned, the means of publication of it, the extent that the statement was circulated, the importance of [sic] the Plaintiff of his reputation in the eyes of recipients of the statement and the evidence of the reputation of the Plaintiff.

Nolan J was satisfied that the Plaintiff had a very fine reputation in society which had been damaged by the defamatory remarks. He was also struck that the online posts remained in place for at least nine months after the order of the court to remove them and that there had been no prior steps by the Defendant to remediate the defamatory remarks.

Nolan J applied the principals set out by the Supreme Court in Higgins v the Irish Aviation Authority, which laid out the general categories of damages in defamation cases as follows:

Summer 2025 dsba.ie Audrey Byrne and Bébhinn Bollard are partners in the disputes team at McCann Fitzgerald LLP. Conal O’Doherty is a senior associate at McCann Fitzgerald LLP

Level

Category of seriousness of defamation

Compensation range ( )

1

Moderate defamation

0-50,000

2

Medium defamation

50,000-125,000

3

Seriously defamatory material with mitigating factors such as limited publication

125,000-199,000

4

Very serious defamation

200,000-300,000

Exceptional Cases

Very real damage to an individual’s reputation where the balance is tilted decisively in favour of vindication of good name

Only in exceptional cases will be awards greater

Nolan J held this case fell within the second category of medium damages, as it had a significant impact upon the Plaintiff, and awarded general damages of 120,000, in addition to 20,000 in aggravated and punitive damages. The Defendant’s failure to remove the posts in question over many months was found to be particularly aggravating, as it was in breach of a court order and a contempt of the court process. Nolan J also factored in the Defendant’s complete failure to engage in the proceedings in his assessment of appropriate damages.

Stillorgan Gas Heating and Plumbing v James Manning and Julie Manning Background Stillorgan Gas Heating and Plumbing sought damages against the Defendants in relation to negative reviews posted online by the first defendant, r James Manning. Mr Manning posted these reviews following a dispute over plumbing services provided by the Plaintiff and fees arising from additional plumbing services not initially envisaged. The Defendants

Litigation

The Defendant’s failure to remove the posts in question over many months was found to be particularly aggravating, as it was in breach of a court order and a contempt of the court process the Parchment 25

Litigation

These judgments emphasise that the defendant’s conduct, including whether or not the defendant took steps to remove the content and the length of time a defamatory post remains online, are particularly important for the assessment of damages

26 the Parchment

refused to pay for these additional services and as a result, the Plaintiff removed the e uipment it had installed.

The negative reviews were posted on platforms such as Google Maps and Trustpilot, and included statements describing the company as a rogue trader , absolute con men , gangsters and cowboys . It was found that Mr Manning posted these reviews under various names, including that of his wife. In certain reviews, r anning falsely claimed that the Plaintiff was under investigation by An Garda Síochána in relation to theft of property. y order dated 23 ctober 2023, the High Court granted judgment in default of appearance against the Defendants and the case was set down for hearing to assess the appropriate damages.

Court Findings n 11 ebruary 2025, r Justice radley delivered judgment for the High Court and in assessing damages, applied the principles set out in Casey to consider the gravity and impact of the online post (as detailed above).

Bradley J ruled that the reviews describing the Plaintiff “as ‘cowboys’, ‘gangsters’, ‘absolute con men’ and that the ‘gardai’ were ‘investigating the removing of items’ would lead a reader of those reviews, i.e., in the eyes of reasonable members of society, to conclude that the reviewer who had engaged the company thought them conmen who...had stolen property and that the gardaí were investigating the matter”.

Bradley J indicated the short length of time the reviews were posted was an important factor in the assessment of damages, stating: “The relatively short period during which the reviews were posted online combined with the fact that company ran a well-established and trusted business are also factors to be weighed in the balance when assessing the amount of compensation.”

Bradley J also had regard to the means and extent of publication of the defamatory statement and accepted evidence that online reviews have the potential for wide circulation and that ‘word of mouth’ constituted an important factor in generating business and the “reputational profile” of the Plaintiff.

The Plaintiff gave evidence that sales figures had declined in the period after the reviews were posted.

Bradley J did not accept that the particular drop in sales figures cited was due to the reviews but accepted that the reviews “had a general reputational damage on the company albeit one limited in time ”.

Having regard to Casey and the damages guidelines laid down in Higgins, Bradley J considered the case to be in the ‘moderate’ category of seriousness of defamation and that the Plaintiff was entitled to an award of 40,000.

Bradley J did not make an award for aggravated and punitive damages. In particular he considered that there was a relatively short period during which the reviews were available online, with two of the reviews removed after 24 hours and the others removed after four days. radley J also took into consideration that the first defendant had expressed a degree of regret, although noting that this did not amount to an apology within the meaning of the efamation Act 2009.

In a further costs hearing on 19 arch 2025, the Defendants were ordered to pay the legal costs of the case, at the Circuit Court rather than High Court scale. The lower Circuit Court scale was applied as the damages awarded were within the maximum 75,000 limit of the Circuit Court.

Conclusion The High Court judgments of Casey and Stillorgan Gas Heating and Plumbing provide useful guidance in relation to the key factors the Court will consider when assessing damages arising from defamatory posts online and reiterate the relevance of the Higgins damages parameters.

In particular, these judgments emphasise that the defendant’s conduct, including whether or not the defendant took steps to remove the content and the length of time a defamatory post remains online, are particularly important for the assessment of damages. The Court will also consider the degree of remorse shown by a defendant and the level of their engagement with the court process. P

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01/07/2015 15:01

Circuit Court Capacity Applications Part 5 of the Assisted ecision- aking (Capacity) Act has shifted capacity applications to the Circuit Court, introducing a new process for appointing ecision- aking Representatives. Áine Hynes SC outlines the key steps and offers practical guidance for practitioners

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he Part 5 legislative provisions represents a fundamental change in the legal mechanisms by which declarations of incapacity are now made. eclarations were made predominantly in the High Court by the President of the High Court. Now, applications regarding a person’s capacity are made to the Circuit Court under Part 5 of the A (C)A. Since commencement of the A (C)A on 26 April 2023, to date, there have been some 1400 Circuit Court rders made this is against a backdrop of the estimated figure of 1,695 for the first year of service as anticipated in the 2021 SS Service emand orecast Report. The Report also anticipated an annual rise in those figures to 1800 per year. Accordingly, the numbers anticipated by the SS up to June 2025, were approximately 3830. f note, the SS Service emand orecast Report 2021 also anticipated that, at a take up rate of 25 , approximately 4700 Assisted ecisionaking Agreements and 1200 Co- ecision- aking Agreements would be registered annually. Just 131 Decision Making Agreements and 114 Co-Decision-Making Agreements have been registered up to June 2025. These figures are very stark indeed and should be interrogated properly. Both arrangements must be registered via the SS igital Portal and perhaps this may be one of the reasons for the exceptionally low take up numbers to date.

It would be preferrable if paper-based documents were freely available in relevant hospitals, nursing homes and residential centres and freely available to download. As practitioners who are dealing with the registration of EPAs via the SS Portal are aware, it is very difficult for those of us with full capacity to navigate.

Whilst the Circuit Court figures are far less stark than the SS figures, nonetheless, I would hope that there will be a greater take up in Circuit Court applications, as they are often the only means by which matters can be advanced for the benefit of a

28 the Parchment

person who lacks capacity. I appreciate that many practitioners are concerned about the potential complexity of such applications, and I hope this article will provide practical guidance, including a template instruction for the necessary capacity statement as these statements are often the reason why applications do not progress efficiently.

The Circuit Court Rules and forms, developed by Jim Finn, former Registrar Wards of Court, are of great assistance and can be found at this link https://www. irishstatutebook.ie/eli/2023/si/201/made/en/pdf.

A capacity application is commenced in Form 55A entitled Capacity Application. It is necessary to file and serve an riginating Notice of otion to commence Part 5 proceedings. This will set out details of the relevant person, applicant, relief sought (e.g. co-decision vs R) and identifies any proposed R or urgent orders. It is necessary to complete a Statement of Particulars in Form 55B. This will set out the relationship of the applicant; the rationale for the application; why less restrictive measures aren’t suitable; details of the person’s will and preferences, assets/liabilities, and support needs and details of any co-decision-maker or R nominee.

It is necessary to file rounding Affidavit in Form 55I. This is to be sworn by the applicant verifying the Capacity Statement and Exhibits. It must exhibit the capacity report from a medical/healthcare professional, the draft form 55A (Capacity Application and form 55 (if an ex-parte consent re uired) supporting documents (statements, correspondence, existing orders or decision-making arrangements). nce the Notice of otion has issued from the relevant Circuit Court office it is necessary to serve on the relevant person and complete an Affidavit of Service in orm 55 which must be personally served on the Relevant Person with a proper explanation.

The relevant person can object and complete Form 55C. It must also be sent by registered post to notice parties (e.g. spouse, children, existing supporters). P

Summer 2025 dsba.ie Áine Hynes SC is a partner at St. John Solicitors.

She is a former President of the DSBA

Mental Health Law

Precedent instruction for capacity statement to ground a successful application Instruction letter to capacity assessor The letter refers to a template which my firm have generated based on the Circuit Court and HSE guidelines which can be found at https://www.hse.ie/ eng about who national-o ce-human-rights-e uality-policy assisted-decision-making-capacity-act part- -capacitystatement-template-june-202 .pdf. ear r Healthcare professional, I confirm we act on behalf of X Person> in relation to the above and [we are taking instructions from <name in relation to a ecision- aking Representative ( R) application for relevant person name>.

Background [It is important here to set out background and why is there a concern about the capacity of the person to make the particular decision(s) listed below at this time]

Decision Making Representative (DMR) nder the Assisted ecision aking (Capacity) Act 2015 ( the 2015 Act ), if a person is unable to make certain decisions even with someone else’s support, the Circuit Court may make an rder appointing a ecision- aking Representative ( R) to make certain decisions on their behalf, taking into account their wishes.

The scope of a R’s authority to make decisions depends on the terms of the Court rder appointing them, which may include the attachment of conditions relating to the making of decisions by the R, or the period of time for which the order is to have effect.

In order to make such an application to appoint a R for relevant person , the Circuit Court will re uire a capacity assessment report and I would be grateful if you would assist in preparing same.

Decision-Specific Assessment of Capacity The 2015 Act establishes that the assessment of capacity must be based on the person’s capacity to make a specific decision in relation to the relevant matter, at the material time, and not their capacity to make a decision in general.

Please find enclosed Capacity Assessment Template ( the Template ), which may be of assistance to you in preparing your report. The template is based on the Circuit Court uide to the functional assessment of capacity under the Act 2015. a. Personal Welfare Decisions In relation to <relevant person>, I would be grateful if you would assess his/her capacity to make decisions

relating to his/her personal welfare, including: 1. [Client should instruct you as to what personal welfare decisions need to be made on behalf of the patient. See page 11 of orm 55 for particular decisions to be assessed] b. Property and Affairs Decisions In relation to <relevant person>, I would be grateful if you would assess his/her capacity to make decisions relating to his/her property and affairs, including 1. [Client should instruct you as to what property and affairs decisions need to be made on behalf of the patient. See pages 13 of orm 55 ]

Capacity Test Section 3 of 2015 Act contains the principles that underpin the determination of capacity and the definition of what it means to lack capacity to make a particular decision. For your ease of reference, the terms of section 3 are set out below. The principles set out in section 3 are also reflected in the enclosed Template and the Circuit Court uide. a. Consideration of Appointment of Co-Decision Maker As reflected in Part E of the Template (and the Circuit Court uide), the Courts are concerned that due consideration be given as to whether the appointment of a Co- ecision aker (rather than a R) would be appropriate. It is important that you address this issue in your report.

Please note that in accordance with s. 38 of the 2015 Act, where the Court makes a declaration that the person lacks capacity unless a suitable Coecision aker is appointed, but there is no suitable person to act as Co- ecision aker, the Court may appoint a R.

DSS Code of Practice on Supporting Decision Making and Assessing Capacity Further information on the guiding principles is available in the ecision Support Service ( SS) Code of Practice on Supporting ecision aking and Assessing Capacity, which can be found here: https:// decisionsupportservice.ie resources codes-practice code-practice-supporting-decision-making-andassessing-capacity.

I look forward to hearing from you. In the meantime, if you have any ueries, please do not hesitate to contact me.

Yours, etc.

the Parchment 29

Court Digital Rules Published The igital Rules, which the Superior Courts, Circuit Court and District Court Rules Committees adopted last year, have been published and the Statutory Instruments are available through links on courts.ie

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he igital Rules allow for end-to-end digitisation of court processes and make online filing, payments and tracking of court documents and cases possible. They also specifically make provisions for a Statement of Truth, which is a fully online affidavit and digital serving. The igital Rules underpin the digital interaction with the new Courts Portal which has gone live on a pilot basis for Circuit Court Family Law in Dublin. wen Harrison, Chief Information fficer for the Courts Service, explains the opportunity the igital Rules and Courts Portal offers The Courts Portal going live in Dublin for Circuit Court Family Law applications means legal practitioners and selfrepresentatives in ublin can file to court, complete Statements of Truth (online affidavits) and serve other parties online. The Courts Portal is accepting Circuit Court filings for amily law applications in ublin now.

Underpinned by the Digital Rules, this is a completely new service and new approach to digital service development being offered by the Courts Service to improve the court experience for all.”

Speaking about our digital transformation Mr. Harrison explained We have worked with Courts Service staff, judiciary, practitioners and members of the public over the last number of months and years to get to this point. Last year we introduced a new case management system for Courts Service staff in Circuit Court amily Law. This was followed by the introduction of a judicial version of the case management system. Prior to adding the Courts Portal for Circuit Court Family Law as a pilot for practitioners in Dublin, we had extensive engagement with practitioners to understand their systems and ways of working.”

Speaking about the next steps Mr. Harrison noted This is only the beginning, we’re keen for practitioners in Dublin for Circuit Court Family Law to sign up to the Court Portal accessible from portal.courts.ie so that they can start filing. As soon as they do this, we want to hear from them as we plan to upgrade and iterate as we get feedback from practitioners. This is brand new for everyone, and we are keen to continue to develop the Portal in an agile way improving as we go. Once we’re happy with Courts Portal for Circuit Court Family Law in Dublin we will

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move out of the ‘pilot stage’ and rollout the Courts Portal for Circuit Court Family Law nationwide.

After this we will then move to the next addition to the Portal which will be for Probate and so on.”

Speaking about the work of the Rules Committees, r. Harrison confirmed The Rules Committees, who are made up of the judiciary and legal practitioners, took a very thorough approach to the Digital Rules and their implications. In addition to inserting a new set of rules enabling digital processes, they amended the general body of Rules of Court for example, those rules which deal with issuing of summonses, service, digital signatures, and entering appearances to ensure that there is no conflict in our new Digital rules with the rest of the Rules of Court.”

Definitions New definitions have been added to the Rules. These new definitions include igital delivery this is defined as delivery of a document by electronic means by a Portal user to a court office or court officer by a court officer or member of staff of the Courts Service to a Portal user or • by a Portal user to another Portal user.

A Portal user can be a self-representative or a solicitor.

Statement of Truth New rules providing for statements of truth (SoT) Section 21 of the Civil Law and Criminal Law ( iscellaneous Provisions) Act 2020 provides that where evidence is to be given on, or a document or information is to be verified by, affidavit or statutory declaration, Rules of Court may provide for a SoT to be made in place of the affidavit or statutory declaration.

The justification for providing for a SoT is simply that the process of swearing an affidavit does not lend itself to a digital process (other than by scanning or transmitting a pdf copy of an affidavit).

Rules provide that where an affidavit is re uired or permitted in proceedings, the filing of a SoT satisfies any obligation to file an affidavit.

Summer 2025 dsba.ie

Court Rules

Note that the person who executes the SoT is referred to as the maker rather than deponent.

There are several avoidance of doubt provisions in the new digital rules. For example, the rules say that provisions which confer an entitlement to cross-examine a deponent to any affidavit also apply to the maker of a SoT.

Changes: rder 15 rule 7 inserted by SI 217 of 2025, effective 18 June 2025

Digital users must comply with terms and conditions of use

Order 41: Appeals from the District Court Changes: rder 41 rule 1A inserted by SI 217 of 2025, effective 18 June 2025. rder 41 rule 8A inserted by SI 217 of 2025, effective 18 June 2025.

The rules set out some of the conditions to become a digital user. Natural persons must submit sufficient evidence of identity as prescribed by the Portal. A firm of solicitors must submit sufficient evidence of its establishment and standing as well as evidence of the identity of each natural person authorised to file digitally on behalf of the firm through the Portal (as prescribed by the Portal). The rules also say that digital users must undertake to comply with published terms and conditions of use of the Portal.

Other provisions governing digital delivery The rules provide that a document filed digitally is not effective until the court fee (if any) is paid. Payment of court fees will be effected electronically.

When are digital documents filed?

The rules provide that the date of filing or issue of a document is the date of filing or issue recorded by the Portal. The date will be notified electronically through the Portal to the filing party.

Electronic signatures and seals The rules say that documents transmitted digitally which re uire a signature may be signed by use of an electronic signature. Similarly digital documents which re uire a seal may be sealed electronically.

Circuit Court Digital SI SI 217 of 2025 Changes these 9 Circuit Court Rules Order 4: Court Seal and Authentication of Court documents Changes: rder 4 rule 1(2A) inserted by SI 217 of 2025, effective 18 June 2025. rder 4 rule 1(2 ) inserted by SI 217 of 2025, effective 18 June 2025. rder 4 rule 1(5) inserted

by SI 217 of 2025, effective 18 June 2025.

Order 7: Third Party Procedure Changes: rder 7 rule 4A inserted by SI 217 of 2025, effective 18 June 2025.

Order 11: Issue of Civil Bills, Service of Documents Changes: rder 11 rule 5A inserted by SI 217 of 2025, effective 18 June 2025. rder 11 rule 19A inserted by SI 217 of 2025, effective 18 June 2025 Order 11A: Re uirements as to form and delivery of pleadings, documents and notices used in civil proceedings in the Court New Order: rder 11A inserted by SI 217 of 2025, effective 18 June 2025.

Order 15: Appearance, efence, Lodgment, ffer of Payment in lieu of Lodgment and Counterclaim

Order 25A: Statements of Truth New Order: rder 25A inserted by SI 217 of 2025, effective 18 June 2025.

Order 62: Cases Stated Changes: rder 67 rule 2 substituted by SI 217 of 2025, effective 18 June 2025. rder 67 rule 4 substituted by SI 217 of 2025, effective 18 June 2025. rder 67 rule 5 substituted by SI 217 of 2025, effective 18 June 2025.

Order 67: General Changes: rder 67 rule 2 substituted by SI 217 of 2025, effective 18 June 2025. rder 67 rule 4 substituted by SI 217 of 2025, effective 18 June 2025. rder 67 rule 5 substituted by SI 217 of 2025, effective 18 June 2025.

District Court Digital SI S.I. 218 of 2025 Changes these 8 District Court Rules

Once we’re happy with Courts Portal for Circuit Court Family Law in Dublin we will move out of the ‘pilot stage’ and rollout the Courts Portal for Circuit Court Family Law nationwide

Order 12: Miscellaneous Provisions Changes: rder 12 Rule 9 sub rule (5) inserted by S.I. 218 of 2025, effective 18 June 2025.

Order 39A: rder 39A Re uirements as to form and delivery of pleadings, documents and notices used in civil proceedings in the Court New Rule: rder 39A inserted by S.I. 218 of 2025, effective 18 June 2025 2025.

Order 41: rder 41 - Service of ocuments in Civil Proceedings - Service of ocuments in the State Changes: rder 41 Rule 4A inserted by S.I. 218 of 2025 effective 18 June 2025.

Order 42: Defence Particulars and Counterclaim Changes: rder 42 Rule 1 Sub-rule 1A inserted by SI 218 of 2025 effective 18 June 2025.

Order 42A: Third Party Procedure Changes: rder 42A Rule 1A inserted S.I. 218 of 2025 by effective 18 June 2025.

Order 48: Authentication And Filing of Documents Changes: rder 48 Rule 3A inserted by S.I. 218 of 2025 effective 18 June 2025.

Order 49: Hearing of Civil Proceedings Changes: rder 49 Rule 7A inserted by S.I. 218 of 2025 effective 18 June 2025.

Order 50A: Statement of Truth New Rule: rder 50A inserted by S.I. 218 of 2025, effective 29 day of ay 2025.

Our thanks to Maura Howe of the Courts Service for her assistance in providing the above. P the Parchment 31

Tackling the Law S A In-House Committee’s evin ’Higgins interviews vonne Nolan, eneral Counsel, ederation at World Rugby, and they talk about the intersection of sport and law, the evolution of women’s rugby, and the uni ue challenges of overseeing the regulatory side of a global game

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elief ’ is how many of the New ealand All lacks describe the feeling of winning the Rugby World Cup in 2011. It ended a 24 year wait since the last world cup win for the All lacks an eternity for a rugby-obsessed country. Similarly, after Jonny Wilkinson kicked an extra time drop goal to win the William Webb Ellis trophy for England in 2003, it wasn’t elation or pride he spoke about. It was relief ’.

As it happens, I meet with vonne Nolan, eneral Counsel, ederation at World Rugby, in the Webb Ellis’ board room in World Rugby Head uarters in ublin. The men’s Rugby World Cup trophy (and the board room in World Rugby H ) are named after William Webb Ellis - the schoolboy who is purported to have had a role in inventing the game of rugby when he picked up the ball and ran with it at Rugby School in 1823. vonne uses that same word relief ’ to describe what she felt when she won her first cap for the Ireland women’s rugby team against Spain in 2006. She went on to earn 24 caps in total for her country, playing in 32 the Parchment

World Rugby got in touch with me about an opportunity on the in-house legal team and I thought to myself, it was now or never, and there would always be a chance to go back to private practice

multiple Six Nations and two Rugby World Cups as well as representing Leinster.

After all the sacrifice and training, one can understand the relief.

It didn’t seem a likely path for vonne when she was growing up in Tullamore.

“I was always sporty but women’s rugby was non-existent growing up. I loved watching rugby but it wasn’t an option back then. I was a gymnast and also played basketball and loved Gaelic sports.”

It wasn’t until vonne moved to ublin to study Psychology at C that she truly discovered rugby.

“There were so few women’s clubs at the time.

Old Belvedere RFC was mentioned to me, and I decided to go down as it wasn’t far from UCD. I absolutely loved it from day one. The club was very progressive and really supportive of women’s rugby. They saw early on the social benefits of having women involved.”

After completing her Psychology degree, she went on to study a asters in Cognitive Science but began to realise a career in law might be more to her liking. vonne enrolled in the Postgraduate iploma in Law in the Technological niversity of ublin, during which time she completed

Summer 2025 dsba.ie Kevin O’Higgins is in-house legal counsel and director at KPMG Ireland. He is a member of the DSBA in-house committee

Interview

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ou have to remember that you are working with lots of people who aren’t lawyers, you need to engage with different people in a certain way and be aware of different background and interests her E1s. This began nearly a decade-long journey in cCann it erald, a place she has very fond memories of. Working primarily in commercial litigation, vonne had to juggle her rugby commitments with her responsibilities as a lawyer in one of the country’s biggest firms, but thankfully for Irish rugby, to the credit of cCanns, she was encouraged.

“The 2006 Rugby World Cup in Canada was in the middle of my traineeship with McCanns. They were always really supportive and understanding of my rugby in terms of playing and training commitments.” vonne remains in contact with many former colleagues from her days in cCanns.

She cites Helen ilroy and Audrey yrne (both current Partners of the firm) as key influences during those days as well as uriel Walls. “They were all strong women, excellent at what they do and passionate about other interests outside of law.”

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vonne never had any real intention of leaving cCanns. She loved her role. The move to in-house law wasn’t on the cards but after completing a disciplinary officer training course with World Rugby, she admits feeling fascinated by the work they were doing, realising that there was a whole legal framework behind the scenes that rugby players and supporters knew very little about.

“World Rugby got in touch with me about an opportunity on the in-house legal team and I thought to myself, it was now or never, and there would always be a chance to go back to private practice. It seemed too good an opportunity to turn down – the law and rugby coming together.” espite the transition to in-house law being a big change, vonne is of the view that her background in commercial disputes gave her a fantastic grounding for her current role.

As eneral Counsel at World Rugby, vonne focuses on governance and the regulatory aspects of the game of rugby. This includes

player welfare issues, disciplinary matters, competition law and sanctions. She has recently been involved in the introduction of a streamlined disciplinary process as a trial to avoid protracted hearings and disciplinary panels.

“One minute you’re doing an anti-doping case then an agent’s dispute. It is constantly varied, and as a lawyer, it keeps it really interesting.

I think the prior experience in commercial litigation and the overall training from McCanns was beneficial - whatever challenge comes up, you’re trying to resolve it, so much of the background I had was transferable”.

World Rugby has over 130 unions across the globe so dealing with different cultures and lawyers in other jurisdictions is a big part of the job but like any in-house lawyer, vonne works with a wide range of people involved in World Rugby and the sport generally. She speaks of the importance of in-house lawyers being well rounded and having other interests.

“You have to remember that you are working with lots of people who aren’t lawyers, you need to engage with different people in a certain way and be aware of different background and interests.” vonne has had recent exposure to working alongside lots of people with different roles and expertise. As a member

Summer 2025 dsba.ie

Interview

Photography: Bryan Meade

of World Rugby’s High Tackle Sanction ramework Review roup, she has worked with international coaches like Joe Schmidt, avid Rennie and regor Townsend as well as medical professionals along with some other lawyers and former professional rugby players like Conrad Smith and avid uinlan as well as former referee and lawyer, Wayne arnes any lawyers who make the move out of private practice miss the support mechanism of other solicitors around them, whether it is to get a uick steer on something or locating some helpful precedent. vonne can relate to this, but she is also grateful to have a small team of lawyers around her on the regulatory side of World Rugby as well as other commercial lawyers within the wider rugby family.

“That is the big difference with moving to an in-house role. Suddenly you don’t have the same ability to bounce things off hundreds of lawyers under one roof, it’s a challenge but thankfully there are lots of lawyers in other member unions, in other jurisdictions, which can be helpful. We all bounce matters off each other.”

The men’s Rugby World Cup remains the jewel in the crown for World Rugby in terms of its financial success. vonne has been lucky enough to work from the host country for recent tournaments in rance and Japan,

as well as lympic games as part of the rugby sevens programme - a major benefit of her role.

“You’re pitch side or under the stadium, it is a major privilege to be around that. The energy as the teams are about to go out is hard to describe.

Working at a tournament is fun, challenging, stressful but really enjoyable. It is one of the highlights of what we do”. vonne will also travel to the upcoming women’s Rugby World Cup in England. It will be nearly 20 years since her Ireland debut. She reflects on the evolutions of women’s rugby since then. She recalls playing in a university campus in front of a few hundred people during her first Rugby World Cup experience in Canada in 2006.

She cites coaches like Philip oyle and an van yl as having a hugely positive influence on her rugby days and women’s rugby at that time but acknowledges the game is now in a better place.

“It is very different now, a different era. The professional set up wasn’t there at the time. The standards both on and off the pitch are very different today. The game has evolved.”

It certainly has evolved and it is clear that World Rugby sense that, both in terms of participation numbers and crowd attendances. There is confidence within World Rugby and wider rugby circles

that the upcoming women’s Rugby World Cup final will be an 82,000 sell-out at Twickenham Stadium. utside of work, vonne is kept busy between her passion for gardening and supporting her kids at the side of AA pitches and in gymnastic halls. It remains to be seen whether they will play rugby her only hope is that they continue to play team sports.

“The discipline of training, learning to win, learning to fail - sport is such a great place to learn those things. It gives you so much more than you ever put into it.” vonne offers sage advice for the next generation of young lawyers, juggling work and an elite sports career.

“If you can, focus on the sport as much as you can, just give it a go. The sports career won’t last forever; it could end tomorrow, enjoy it.”

There is no doubt that vonne took the opportunity given to her and made the most of it. It takes incredible sacrifice and discipline to reach the top of any sport. To do it alongside her legal career is impressive.

It is easy to understand that feeling of relief back in 2006, singing the national anthem for the first time against Spain. Asked whether she managed to enjoy it, it is clear she has no regrets.

“I would do it all again in a heartbeat.” P the Parchment 35

Reforming Ireland’s Planning System The Planning and Development Act 2024 represents a significant overhaul of Ireland’s planning system. ichelle artin analyses the key reforms introduced and outlines how they are expected to reshape consent procedures, decisionmaking timelines, and judicial review

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he Planning and Development Act 2024 ( the Act ) was signed into law on 17 ctober 2024, and except for certain discrete aspects, the majority of the 2024 Act is not yet in force.

We understand that commencement orders to bring the various provisions of the 2024 Act into force will be signed over the coming 18 months.

The overnment has now begun the process of commencing the various parts of the 2024 Act and, therefore, this is a good time to consider the main provisions of the 2024 Act and where we are in terms of the roadmap to the commencement of the 2024 Act. The proposals for the commencement of the 2024 Act have been tweaked by the overnment on a number of occasions since the 2024 Act was signed into law, so it is not possible to predict exactly when the various blocks will be commenced. or instance, the commencement of the new Judicial Review provisions of the 2024 Act have now been given priority, when it was originally envisaged that these provisions would be included in one of the final blocks of the 2024 Act to be commenced.

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Some of the Government’s main aims in introducing the 2024 Act were to: Consolidate existing legislation Ensure a functional and well-resourced planning system Provide for a plan-led as opposed to decisionled approach to planning, which will hopefully provide more predictable outcomes in planning decision-making Strike a balance between providing legal certainty for developers while protecting the environment.

The 2024 Act is the third-largest piece of legislation in the history of the State. We expect there will be a lengthy transitional phase when parts of the existing Planning and evelopment Act 2000 (as amended) (2000 Act) and parts of the 2024 Act will apply simultaneously.

The epartment of Housing, Local overnment and Heritage previously published an Implementation Plan outlining a four-block phased commencement strategy. It indicated that the provisions of the 2024 Act would be commenced as follows

Summer 2025 dsba.ie Michelle Martin is a partner at William Fry. Her practice includes judicial reviews arising out of proposed major infrastructure projects, planning injunctions and planning oral hearings

The first block of provisions in 2 2025. Parts of this block have recently been commenced, including the establishment of An Coimisi n Plean la, the entity which has replaced An ord Plean la. The new Judicial Review procedures will be commenced under this block The second block in mid-2025 dealing with matters such as plans (including evelopment Plans) and planning guidelines. The remaining sections of the 2024 Act relating to rban evelopment ones should be commenced under this block.

Certain sections of the 2024 Act relating to rban evelopment ones have recently been commenced The third and fourth blocks , which will commence the remaining provisions of the 2024 Act (including consenting procedures), will follow in two further commencement phases. urther details on the timing of these commencements will be confirmed as progress continues.

In this first instalment of our new series examining the 2024 Act, we briefly outline some of the key reforms.

Planning

Snapshot of Key Reforms 1) Establishment of An Coimisiún Pleanála An ord Plean la ( oard) has been restructured and renamed An Coimisi n Plean la (Commission) as of 18 June 2025.

The governance and decision-making arms of the oard have been separated.

A governing board is responsible for the Commission’s corporate governance and oversees performance, resourcing, etc. The governing oard is chaired by former HSE CE , Paul Reid.

To improve transparency and efficiency, Planning Commissioners (not the governing board) will carry out the planning decision-making functions of the Commission. The role of Chair of An ord Plean la has become the CE of the Commission. Notably, the CE of the Commission will not have a role in planning decision-making. ormer oard Chairperson, Peter ullan, has become CE of the Commission.

2) Consent Procedures The 2024 Act alters the existing procedure for the Parchment 37

Rather than uash a decision which is the subject of a JR challenge, the 2024 Act provides that the Court can adjourn the proceedings and allow an error to be corrected by the relevant decisionmaking body

obtaining development consent, setting out four different categories of development consent • Standard Developments Chapter 4 evelopments (applications directly to the Commission) Revocations, alterations and extensions of existing permissions Local Authority and State Authority evelopment This article will focus on Standard evelopments, Chapter 4 evelopments, and alterations and extensions of existing permissions.

The 2024 Act sets specific statutory timelines for decision-making for Standard evelopment and Chapter 4 evelopment. elays can result in a number of conse uences, including the reimbursement of the planning application fees and the need to report to the inister or the ffice of the Planning Regulator. These timelines recognise the need for timely planning decisions to deliver much-needed key infrastructure, particularly in the housing, energy and transport sectors.

However, it remains to be seen if the conse uences of breaching the timelines will be sufficient to ensure efficient decision-making, particularly if the planning authorities and or the Commission are not appropriately resourced.

We have given some thought to the main changes to consenting procedures provided for in the 2024 Act below. urther detail will follow in a specific article on consenting procedures under the 2024 Act.

Standard Developments Applications for standard developments are made directly to the local planning authority and may be appealed to the Commission. Large-scale residential developments fall under this procedure, subject to certain modifications.

The decision-making timelines for planning authorities on planning applications for standard developments are broadly similar to those under the 2000 Act. Planning authorities will have additional time to decide on applications for which an Appropriate Assessment (AA) or Environmental Impact Assessment (EIA) is re uired. n appeal, the Commission must decide within 18 weeks if neither AA nor EIA are re uired. It must decide on an appeal within 26 weeks if AA EIA is re uired. There are also extended timelines where further information is re uested and or where there has been an oral hearing. nder the 2000 Act, there is no set timeline for the oard to decide on an appeal there is simply a non-binding statutory objective to make a decision within 18 weeks.

Chapter 4 Developments Planning applications under this section of the 2024 Act are made directly to the Commission and include developments for which retrospective consent (formerly substitute consent) is re uired strategic infrastructure developments electricity transmission infrastructure developments strategic gas infrastructure developments Chapter 4 maritime developments Chapter 4 local authority developments and Chapter 4 State authority developments.

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Again, the 2024 Act sets time limits for the Commission’s decision-making on applications for Chapter 4 evelopment. The 2024 Act provides 48 weeks for the Commission to decide on an application for Chapter 4 evelopment. An extension of 20 weeks is provided for where the Commission has re uested further information, and an additional 12-week extension where there is an oral hearing. nder the 2000 Act, the oard merely has an objective to ensure that a decision on a direct application (e.g., for Strategic Infrastructure evelopment) is made (a) within 18 weeks beginning on the last day for making submissions or observations, or (b) within such other period as the inister may prescribe. This is not a set statutory time limit, and the objective of making a decision within 18 weeks is essentially meaningless.

However, developers may not view this new statutory timeline to make a decision on Chapter 4 evelopment as an improvement on current planning timelines, but, at a minimum, it should bring greater certainty. iven the nature and scale of Chapter 4 Developments and the timeline involved in preparing the applications themselves, it is unsurprising that the decision-making takes time.

There is a balance to be struck in making timely, efficient and robust, environmentally considered decisions.

The 2024 Act makes express provision for some design flexibility, which will be welcome news to windfarm developers, given historical issues with turbine technology outpacing the planning process.

Applications for revocations, alterations, extensions Applications may be made to alter the terms or extend the duration of a permission.

The 2024 Act expressly provides for an application procedure for alterations to a broader range of existing planning permissions. This procedure will be considered further in our upcoming article on development consents under the 2024 Act. The 2024 Act provides a wider-ranging and more complex procedure for extending the duration of planning permission than the procedure under the 2000 Act. However, the current application process for extensions of duration continues to apply until 16 ctober 2027. In particular, the 2024 Act introduces public participation re uirements in applications for “material” extensions of duration.

An application for an extension of duration under the 2024 Act may be refused if the development would materially contravene the relevant evelopment Plan this may cause an issue where a new evelopment Plan has been introduced since the original permission was granted. Therefore, an application to extend the duration of a planning permission will need to be considered with reference to potential changes to the relevant Development Plan and relevant planning policy cycles.

These changes to applications for extensions of duration will be very relevant to developers and their funders, where there is uncertainty as to whether a development can be completed within the duration of the permission.

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Planning

3) Judicial Review The 2024 Act maintains the eight-week time limit within which Judicial Review (JR) proceedings must be brought following a decision.

The current two-stage JR process will be streamlined by eliminating the re uirement for an application for leave. Instead, proceedings will commence by applying to the High Court by originating notice of motion. The applicant for JR must notify the other parties to the proceedings (e.g., the local authority or the Commission and the applicant for planning permission) of its intention to apply for JR on the same day it commences proceedings.

Helpfully, this means that the person who applied for the planning permission will be notified of any JR challenge on the day it is issued. If a JR is commenced, the developer may opt for the duration of the planning permission to be suspended pending the determination of the proceedings.

The 2024 Act introduces some new eligibility criteria which must be satisfied for a JR applicant to demonstrate an entitlement to issue the proceedings. ifferent rules apply to other categories of applicants, such as individuals, incorporated associations (including environmental N s), and non-incorporated associations (including residents associations). The new standing rules re uire environmental N s and residents’ associations

to satisfy specific governance criteria. Individuals must be directly or indirectly materially affected by the proposed development at issue or must have participated in the planning process by making a material submission.

Where an applicant is withdrawing a JR, such applicant must declare that the withdrawal of the proceedings is not for securing payment or other benefit.

Appeals from decisions of the High Court in planning JRs are now limited to appeals directly to the Supreme Court.

There will be no appeals to the Court of Appeal.

The 2024 Act introduces a means-tested costs scheme for applicants called the Environmental Legal Costs inancial Assistance echanism.

An unsuccessful applicant for JR can receive a contribution to its costs from the scheme. urther details on how this scheme will operate in practice are re uired.

Rather than uash a decision which is the subject of a JR challenge, the 2024 Act provides that the Court can adjourn the proceedings and allow an error to be corrected by the relevant decision-making body. This provision will hopefully stem the flow of planning decisions being uashed due to discrete but remediable procedural errors. New Court rules have recently been introduced to facilitate these applications. P the Parchment 39

Receivership Appointments Under Scrutiny Ade Oluborode BL explores the growing judicial scrutiny surrounding the appointment and conduct of receivers and outlines some lessons from recent case law

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tatutory powers to appoint a receiver are set out in section 108 of the Land and Conveyancing Law Reform Act 2009 for mortgages executed after 1 December 2009 and in section 19 of the Conveyancing Act 1881 for mortgages executed prior to that date.

Receivership is a remedy available to secured lenders for the enforcement of their security and typically involves taking possession or control of mortgaged property or charged assets. While grounded in private contract, the appointment and conduct of receivers often have wider commercial and societal consequences. Borrowers may lose possession of homes or business premises, sometimes without adequate notice or procedural safeguards. Third parties such as tenants, licensees or employees may also be adversely affected by enforcement actions, including re-entry, change of locks, or business interruption.

In response, the Irish Courts have shown increasing willingness to scrutinise the validity of receiver appointments and the manner in which receivership powers are exercised. Courts have insisted on strict compliance with express conditions precedent, particularly those requiring formal demand or notice. At the same time, they have confirmed that once an appointment is lawfully made, enforcement will be protected against delay tactics or procedural smokescreens. This article reviews selected judgments delivered between 2011 and 2024, addressing formal defects in appointment, administrative failings, borrower obstruction, and the limits of peaceable re-entry.

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Case Law Analysis 1. Strict Compliance with Conditions of Appointment In Donlon v Burns & Ors [2022] IECA 159, two receivers were appointed by Ulster Bank Ireland Limited over a residential property following a mortgage default. The borrower had fallen into arrears, and under the mortgage deed, the bank was required to make a formal demand before proceeding with the appointment. However, no such demand was issued.

Whelan J, holding that this failure rendered the receivers’ appointment void ab initio, affirmed the following principles. i. A receiver appointed out of Court must ensure strict compliance with the terms of the mortgage or charge instrument. ii. Failure to meet preconditions, such as service of a demand, renders the appointment null and void. iii. Trespass may arise from unauthorised acts by receivers even where no force is used. iv. Receivers act at their peril if they accept an appointment without verifying its legal basis.

The Court criticised the respondents for unreasonably maintaining a claim for a prolonged period on foot of an invalid appointment and upheld a damages award of €30,000 for trespass. This judgment reinforces the importance of procedural rigour and the requirement of good faith in receivership practice.

The Courts have consistently recognised that the appointment of a receiver arises from contract and, accordingly, its validity is governed by the express terms of the mortgage deed or debenture. A failure

Summer 2025 dsba.ie Ade Oluborode BL is a practising barrister and mediator

to meet those requirements, particularly where they impose conditions precedent, may render the appointment void ab initio. This is reasonable, given that the power to appoint a receiver does not arise by operation of law but depends on agreement between the parties.

2. Judicial Tolerance of Non-Fundamental Irregularities In contrast to Donlon, the Supreme Court in Charleton v Scriven [2019] IESC 28 adopted a more nuanced view where the contractual breach did not go to the root of the appointing authority. The borrower argued that the deed of appointment was defective because it referred only to “receivers” rather than “receivers and managers” as stated in the debenture. However, the Court held that, as the debenture expressly defined “receiver” to include “receiver and manage”, the deed was valid when read in context.

This decision reflects a contextual analysis and a more flexible approach to procedural defects. The Court was prepared to uphold the appointment where the essential terms of the security instrument had been observed. Therefore, the key question is whether the term that was breached was a true condition precedent, or merely a formal or non-essential condition.

3. Consequences of Poorly Communicated Appointments In McCleary v McPhillips [2015] IEHC 591, Paul McCleary was appointed receiver by ACC Loan Management Ltd, replacing Stephen Tennant.

Company Law / Litigation

However, multiple oversights by Grant Thornton meant the borrower was unaware of this change.

The High Court was critical of the cascading administrative failures, which led to confusion, litigation, and mistrust. The errors included presenting the wrong deed during re-entry, using outdated templates, and failing to provide clear notice.

Cregan J reaffirmed that receivers act at their peril where documentation is unclear or authority is not properly communicated. While the Court did not find the appointment void, it held that the enforcement was compromised by procedural missteps. The case underscores that even a valid receivership may be undermined if the appointment is not properly evidenced and conveyed.

4. Upholding Valid Appointments Against Defensive Litigation In Fennell v Corrigan [2020] IEHC 79, a receiver was appointed under a corporate debenture. The borrower, in an attempt to resist enforcement, entered into a series of lease agreements suggesting third-party occupation. Pilkington J found that these leases lacked substance and were created purely to obstruct enforcement. Possession was granted, and the borrower’s counterclaims were dismissed. On appeal (Fennell v Corrigan [2021] IECA 248), the Court of Appeal upheld the High Court’s decision in full, confirming the validity of the appointment and the irrelevance of contrived procedural defences.

In Kavanagh & Lowe v Lynch [2011] IEHC 348, the Court granted interlocutory relief against borrowers obstructing receivers from collecting rents and taking

The Courts have consistently recognised that the appointment of a receiver arises from contract and, accordingly, its validity is governed by the express terms of the mortgage deed or debenture

the Parchment 41

Company Law

possession. Laffoy J held that absent any defence grounded in evidence, such borrower’s obstruction constituted trespass.

These cases confirm that the Courts will not entertain evidential smokescreens or procedural tactics advanced solely to delay or defeat lawful receivership.

Reliance on defective 5. Trespass, Procedural Fairness and the Limits of Re-Entry or outdated In Coulston & Ors v Elliott [2024] IEHC 697, a receiver documentation, re-entered licensed premises without notice, changing locks in the early hours. Although the appointment or failure to was later deemed retrospectively valid by board resolution, Nolan J held that re-entry without notice notify the peaceable and that it amounted to trespass. borrower clearly wasNonotdamages were awarded, but the case affirms that receivers must observe limits imposed by property law and in good the mortgage instrument. A lawful appointment time, may result and does not excuse heavy-handed enforcement, rather any enforcement action must be proportionate and in a finding of procedurally fair. trespass

or procedural obstruction. As receivership law continues to evolve, practitioners should ensure that the formal validity of appointment is beyond doubt, that documentation is clear, and that enforcement is conducted with proportionality, fairness and an understanding of the governing contractual and statutory provisions.

Practical Implications for Lenders, Borrowers and Receivers

Lenders must ensure that every condition precedent to appointment is satisfied and properly evidenced before appointing a receiver. A failure to serve a demand notice where one is contractually required will invalidate the appointment, irrespective of commercial urgency or underlying default. Particular care should be taken where enforcement powers are invoked under historic or modified mortgage instruments.

Receivers must be satisfied that their appointment is lawful before acting upon it. Reliance on defective or outdated documentation, or failure to notify the borrower clearly and in good time, may result in a finding of trespass. The presentation of authority must Conclusion The judgments reviewed confirm that the appointment be clear, consistent, and contemporaneous with the exercise of power. of a receiver is a matter of strict contractual Borrowers are entitled to contest the appointment interpretation, governed not only by the terms of the mortgage deed or debenture but also by the applicable of a receiver but must do so on legitimate grounds supported by evidence. The Courts have shown limited statutory framework. Non-compliance with a sympathy for borrowers who fabricate tenancies, condition precedent such as failure to serve a demand withhold material facts, or raise procedural objections will render the appointment void ab initio. that are devoid of substance. Defensive litigation of A defective appointment may expose the receiver this nature carries both cost and reputational risk to liability for trespass, even where mortgage default and is unlikely to succeed where the appointment is is admitted. That said, the Courts have shown a otherwise valid and properly grounded. willingness to disregard technical breaches that do Receivership remains a powerful tool, but it must not undermine the substance of a lawful appointment. be exercised with discipline, transparency and legal Conversely, they have shown limited tolerance for certainty. P defensive litigation grounded in fabricated leases

42 the Parchment

Summer 2025 dsba.ie Susan Martin is the principal of Martin Solicitors, Clarehall, Dublin 13. She is a former President of the DSBA

Book Review

Police Powers in Ireland With great power comes great legal scrutiny. In Police Powers in Ireland (Second Edition), arnet range SC explores the evolving framework that governs arda conduct where constitutional rights, statutory duties, and judicial oversight intersect. Susan artin reviews this updated edition and finds it an indispensable, practitioner-focused resource that blends deep legal analysis with real-world applicability

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pider- an had it right with great power, comes great responsibility.

If police powers were a superpower, they’d come with a cape stitched from constitutional rights, statutory limits, and judicial oversight. As with all powers, the uestion is not whether they exist, but how, when, and by whom they should be exercised.

Having found the first edition exceptionally useful, I purchased the second edition of Police Powers in Ireland as soon as it was published, an investment well rewarded. In this updated edition, the author incorporates legislative and case law developments. or example, Chapter 17, isual Identification vidence, includes timely material on identification via social media platforms such as acebook. It also provides practical guidance relevant to prosecutors, defence practitioners, victims of crime, investigating arda , and trial judges, including suggested jury directions. arnet range S.C., with over 35 years at the ar (including 11 years at the Inner ar) and a substantial criminal practice, is well-positioned to address this complex area. In this second edition of Police Powers in Ireland, he addresses the core question: “Can the Gardaí do that - and did they do it right ” The book is structured logically and effectively.

It begins with an overview of An arda S och na as an institution, outlining its duties and statutory powers, before placing them within their broader interpretative and human rights framework. Chapters 6 to 14 focus on the exercise of the powers of investigation including arrest, detention, questioning, the use of warrants, and surveillance. The final section, comprising Chapters 15 to 19, deals with evidence, the conduct of trials, and available remedies for unlawful or improper use of police powers.

Throughout, the author draws effectively on case law, common law principles, practical experience, and academic commentary to contextualise and reinforce the legal analysis. A good example of how this approach is effective is contained in Chapter 6, Arrest. In addition to covering the expected ground including the historical common law basis, statutory powers, procedural mechanisms, and case law, the chapter includes a nuanced treatment of de facto arrest: a concept not expressly provided for in legislation but arising in practice through circumstances or conduct.

This is a situation that detainees, arda , criminal defence practitioners, and judges may encounter.

The author outlines the relevant legal framework, supports it with case law, and offers a helpful test for determining de facto arrest: (i) The words (if any) spoken to the suspect and whether they could be construed as a command or instruction to stop or remain in place. (ii) Whether any force or physical contact was used to restrict movement. (iii) The location of the suspect at the relevant time (e.g., confined to a room or other enclosed area). (iv) The nature of any procedures undertaken during the encounter. (v) Whether the arda was in uniform or produced identification. (vi) The background, age, and education of the suspect.”

This level of detail highlights the book’s practical value as a useful resource, attuned to the realities of day-to-day policing and the evidentiary issues that arise in criminal proceedings.

I commend particularly the book’s detailed index and paragraph numbering system which make it a highly effective reference tool for practitioners who must react uickly in dynamic situations. or example, a criminal defence solicitor attending a arda station with a client will find Chapter 7, etention, especially helpful.

It offers clear and concise guidance on the Custody Regulations and the rights of detained persons. Thanks to the clarity of writing and structure, critical information can be accessed uickly and applied with confidence.

This is a highly practical and valuable resource for arda , ilitary Police, prosecutors, defence practitioners, human rights lawyers and judges. r range is to be commended for the clarity of his analysis, the depth of his scholarship, and his ongoing contribution to this complex and ever-evolving area of law. P the Parchment 43

Binding Agreement via WhatsApp or Emoji?

In today’s digital age, the use of emojis and messaging platforms like WhatsApp have become commonplace in business communications. ark Thompson reviews recent legal cases which have highlighted the potential for these informal methods to create legally binding contracts

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his article examines the implications of two significant cases aevee omes td v Fincham t a Fincham Demolition 202 W C 2 and chter and Cattle td v South West Terminal td, 202 S C which have shed light on how the process of forming and entering into legally binding contracts is changing.

constituted acceptance and that messages confirming aspects of the associated fees for the job were enough to constitute an offer of consideration.

The judge deemed the formal subcontract irrelevant since the contract had already been formed on 17 ay through the WhatsApp exchange.

Jaevee Homes Ltd v Fincham (t/a Fincham Demolition) [2025] EWHC 942 - Background

This case underscores the importance of recognising that informal digital communications can create legally binding contracts. usinesses should be aware that messages sent via platforms like WhatsApp can have the same legal significance as more formal methods of communication.

A similar approach was also taken in Southeaster Maritime td v Trafigura Maritime ogistics te td M “ uafreedom” 202 W C2 .

This case ueried whether the parties had concluded a charterparty agreement during negotiations and whether messages sent via WhatsApp had legal effect. In this instance, the Judge remarked that it was “fanciful and without any real prospect of success, the suggestion that the message should in some way be disregarded, or is somehow of less significance, because it came via Whats pp rather than e-mail”.

In this case, Jaevee Homes Limited and r Steven incham, trading as incham emolition, disputed the formation date of their contract for demolition work. incham argued that the contract was formed on 17 ay 2023 through a series of WhatsApp messages, while Jaevee Homes contended that the contract was formed on 26 ay 2023 when they sent a formal subcontract via email, which incham never signed.

Decision The judge ruled that the exchange of WhatsApp messages constituted a concluded contract.

As is widely known, the basis for contract formation, simply put is offer • acceptance consideration Accordingly, the Judge felt that the Claimant asking the efendant to undertake the demolition work constituted an offer, the Claimant then responding via WhatsApp with a simple yes when asked by the efendant if they could start organising the job, 44 the Parchment

Implications

Achter Land & Cattle Ltd v South West Terminal Ltd, 2024 SKCA 115 Background In this Canadian case, South West Terminal Ltd (SWT) offered to purchase flax from Achter Land Cattle Ltd (Achter). SWT sent a photograph of the

Summer 2025 dsba.ie Mark Thompson is a partner in A&L Goodbody, Belfast

Contract Law

proposed contract’s front page to Achter and asked for confirmation to which Achter responded with a thumbs-up emoji. When Achter did not deliver the flax, SWT argued that the emoji indicated a legally binding agreement.

usinesses should be aware that messages sent via platforms like WhatsApp can have the same legal significance as more formal methods of communication

Decision The court held that the thumbs-up emoji formed a valid and legally binding contract. The emoji, in the context of the parties’ previous informal communications, which included short, informal messages such as and up meant that it was therefore not unreasonable for SWT to assume that the use of the emoji indicated approval of the flax contract.

Implications Although this Canadian case is not binding in the , it highlights the growing recognition of emojis as valid forms of acceptance in contract formation.

Considering this, businesses should consider the potential legal implications of using emojis in their communications.

Key points to note for businesses 1. Ensure staff are aware that seemingly informal communications can be legally binding.

2. Consider developing a policy regarding the use of informal messaging platforms for business.

3. ark all correspondence as Subject to Contract’ or make it clear in discussions between parties that a full contract will follow.

4. Ensure that a paper trail of all correspondence is maintained should dispute regarding contract formation arise.

Conclusion The cases of aevee omes td v Fincham and chter and Cattle td v South West Terminal td demonstrate the evolving nature of contract formation in the digital age. earing this in mind, the judgments delivered in these cases raise an important issue surrounding the need for parties to consider their communication style when entering a contract, as well as their prior discussions and any previous contracts which exist between the parties.

Parties should pay attention to the fact that informal responses provided via social media messaging platforms or the use of emojis does not automatically preclude or prevent them from forming and entering a legally binding contract in instances where it could be argued that the parties understood the intended use and purpose of informal messaging or emojis. Accordingly, businesses must adapt to these changes by being mindful of their communication methods and ensuring clear documentation to avoid potential disputes. P the Parchment 45

Differential Costs Orders The High Court’s recent consideration of the relevant criteria to be assessed in respect of the awarding of a differential costs order is noteworthy, says ergal ullins, as he assesses s Justice Emily Egan’s arch 2025 judgment in the case of Martina Quinlan v Michael Quinlan [2025] IEHC 170

Background The plaintiff sought damages for personal injuries suffered by her as a result of an assault upon her by her defendant husband. Although particulars of the plaintiff ’s personal injuries were supported by an expert report, no report was presented to the Court and no doctor was called to give evidence on behalf of the plaintiff. The Court was therefore restricted to awarding damages for the immediate assault and the sum of 25,000 was deemed appropriate to account for the plaintiff ’s pain and suffering.

Costs In relation to costs, the plaintiff sought Circuit Court costs together with a certificate for Senior Counsel whilst the defendant argued that no certificate for Senior Counsel ought to be awarded and that a differential costs order should apply pursuant to section 17 (5) of the Courts Act 1981, as amended by substitution by section 14 of the Courts Act 1991.

Authorities were opened to the Court by the parties in support of their respective submissions including Moin v Sicika and O’Malley v McEvoy [2018] IECA 240, McKeown v Crosby [2021] IECA 139, Rafter v Edmund Rice School’s Trust Company Ltd [2023] IECA 188, and Collins v Parm [2024] IECA 189.

Relevant Principles Having considered the above authorities, s Justice Egan helpfully derived the following eight principles from these authorities to guide her assessment of the merits of awarding a differential costs order 1. In circumstances where the trial judge has awarded damages to a plaintiff which are within the jurisdiction of a court lower than that in which proceedings commenced and were determined, section 17(5) allows the trial judge to either (a) 46 the Parchment

measure a sum that he/she considers to be the difference between the costs actually incurred and those that would have been incurred had proceedings been issued and determined in the appropriate lower court or (b) decline to make any measurement of the difference and instead refer the matter to adjudication.

2. The Court noted that prior to the introduction of section 17(5) of the Courts Act 1981, unless a defendant applied to have proceedings remitted to the Circuit Court, there was no conse uence for commencing proceedings in the High Court needlessly, other than that a successful plaintiff would be awarded Circuit Court costs and also potentially a certificate for Senior Counsel. The Court noted that the introduction of this legislative provision was intended to address this unfairness and highlighted the importance of this provision to incentivise plaintiffs to institute proceedings in the lowest appropriate court.

3. nce a sum of damages is awarded that a lower court would have had the power to award, judicial discretion to make a differential costs order is triggered. However, this fact alone does not fetter judicial discretion and the courts may decline to make such an order in certain circumstances including where the award of damages is marginally inside the jurisdiction of the lower court or where unpredictable developments arise during the trial. n the other hand, the Court acknowledged that if an award of damages is well within the jurisdiction of the lower court, this is a weighty factor in favour of awarding a differential costs order.

4. Whether there was any realistic basis for commencing the proceedings in the higher court will also be a consideration and if no such justification arises, a differential costs order will be hard to resist.

Summer 2025 dsba.ie Fergal Mullins is a partner in the Healthcare team at Hayes Solicitors

5. The basis for not only commencing proceedings in the higher court will be assessed but also whether it was also appropriate to continue those proceedings in that Court at any given moment during the proceedings.

6. Case law was referenced to illustrate that a differential costs order will be significantly more difficult to resist where the defendant had warned the plaintiff in advance that an order would be sought if necessary. The timing of such a warning letter is also of relevance and notably in the case of Moin v Sicika, the fact the warning letter was served on the plaintiff eleven months before trial supported the defendant’s successful application for a differential costs order.

7. As touched upon in principle two above, there is no obligation on a defendant to apply to remit the proceedings to the lower court in order to seek a differential costs order.

8. All circumstances of the case must be assessed where an application for a differential costs order is sought.

Application to Present Case s Justice Egan was satisfied that it was appropriate for the plaintiff to have commenced proceedings in the High Court and that it was also appropriate to progress this matter in the High Court up until the defendant served a costs differential warning letter on 5 ebruary 2025, a little over three weeks before the hearing date. The Court found therefore that all costs up until 5 ebruary 2025 were properly incurred as a High Court matter.

However, the Court further considered the significance of the defendant’s 5 ebruary 2025 letter, that neither the plaintiff ’s medical records nor her medical reports could be placed before the Court

Litigation

and that the attendance of the plaintiff ’s experts ( eneral Practitioner rthopaedic Surgeon) could not be secured.

It therefore held that the plaintiff should have, upon receipt of the 5 ebruary 2025 letter, applied to adjourn the High Court hearing in order to remit it to the Circuit Court. This failure led s Justice Egan to award a differential costs order in the defendant’s favour. However, it was deemed that the plaintiff ’s Senior Counsel’s brief fee was already properly incurred at that stage and therefore the order would be limited to the difference between the defendant’s solicitor’s trial attendance costs for a Circuit Court assessment with no defence witnesses as opposed to his trial attendance costs for a High Court assessment with no defence witnesses.

Conclusion The above-mentioned eight principles are notable as they formed the basis of the Court’s assessment of the application for a differential costs order. rom a practical perspective, although the judgment illustrates that there is no obligation on a defendant to bring an application to remit proceedings to a lower court in order to apply for a differential costs order, it highlights the benefit of issuing warning letters to plaintiffs where an application for a differential costs order is being contemplated. urthermore, the judgment provides an insight into some of the factors that may influence judicial discretion to award a differential costs order such as how close the uantum of damages is to the limit of the jurisdiction of the lower court and whether any unforeseen developments arose during the passage of proceedings. These principles are likely to guide the courts in assessing similar applications going forward and are instructive for all litigants. P

Although the judgment illustrates that there is no obligation on a defendant to bring an application to remit proceedings to a lower court in order to apply for a differential costs order, it highlights the benefit of issuing warning letters to plaintiffs where an application for a differential costs order is being contemplated the Parchment 47

Family Law Trends eith Walsh SC reviews the latest figures published by the Courts Service in July 2025 and analyses them for archment readers

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pplications in big money or ample resources divorce and judicial separation cases continue to rise with 113 applications in the High Court in 2024, up from 91 in 2023. There were 91 applications for divorce in 2024, up from 64 in 2023 and 22 applications for Judicial Separation, down from 27 in 2023. The applications for ivorce having risen 42 since 2023 and applications for Judicial Separation fallen from 27 to 22, down 18 2 since 2023.

This is the highest number of applications for divorce this century in the High Court and a huge increase on pre Covid numbers in 2019 only 23 people applied for divorce in the High Court, twice that number applied in 2020 46, with further increases in 2021 to 48 and 2022 to 53.

Likely factors for the increase are the growing accumulation of wealth by families and business people in Ireland and the increase in property values in Ireland. Newer forms of wealth such as share allocation schemes and shares in technology companies are providing wealth as well as Irish people living abroad choosing to initiate their divorce in the High Court Ireland which is permitted once either party is domiciled here.

These big money divorce figures are likely to continue to rise.

2024 marks the second highest number of applications in the High Court for both judicial separation and divorce this century, with only more in the year 2000 when there were 115 applications in the High Court of which 39 were for divorce and 76 for Judicial Separation. The waiting time for divorce was then 4 years whereas it has been reduced to 2 years since 2019, so divorce has overtaken judicial separation in popularity.

However, the jurisdiction of the High Court was much less in 2000, at €1 million, and as Divorce was relatively new, having only come into effect in 1997, it is likely that the 2000 figure represented some element of backlog.

48 the Parchment

Divorce and Judicial Separation applications in the Circuit Court return to pre Covid levels The number of applications for Divorce and Judicial Separation in the Circuit Court, which deals with cases where property assets are below €3 million, has fallen to 5,395 in the latest figures released from the Courts Service for 2024. This is similar to numbers for 2019 which were 5,256. The highest number of applications in the Circuit Court for Judicial Separation and Divorce was 2021 when 6,338 people applied. The previous high before that year was in 2008 when 6,180 applied.

The spike in divorce cases after 2019 is probably attributable to the reduction in the waiting time for divorce from 4 to 2 years following the constitutional referendum and the introduction of the Family Law Act 2019 on 1st ecember 2019. With the benefit of further court statistics, Covid is not as significant a factor as previously thought.

Domestic Violence Applications in the District Court steadied this year with a very small decrease from 2023, there were 25,270 applications under the Domestic Violence Act 2018 in 2024 and 25,570 in 2023. This follows a number of years of increases. ery significant increase in applications in childcare cases in the District Court in 2024 to 21,797 from 17,504 in 2023. ery significant increases since 2022 and 2021 when there were 14,914 and 14,038 applications.

Civil Orders against Relevant Conduct commonly known as Stalking or Restraining Orders – Part 5 of the Criminal Justice ( iscellaneous Provisions) Act 2023 commenced in September 2024.

This legislation provides a remedy for applicants similar to those available in domestic violence cases.

Section 27 defines relevant conduct that can lead to a Court imposing an order under Section 28, prohibiting a respondent from doing any or all of the following

Summer 2025 dsba.ie Keith Walsh SC is a Dublin solicitor practising primarily in the area of family law and family disputes. He is a former editor of The Parchment.

a) using, or threatening to use, violence against, molesting or putting in fear the person b) following or communicating by any means with or about the person c) approaching, within such distance as the Court shall specify, the place of residence, education or employment of the person d) engaging in such other forms of relevant conduct as the Court specifies. There has been demand for this application since it became available.

In the first four months of operations, istrict Courts saw the following activity • 314 applications have been received.

133 full restraining orders were granted.

107 interim orders were granted. 11 appeals have been lodged.

Three prosecutions for a breach of a restraining order were commenced.

Awareness of the availability of this civil remedy is growing, and it is expected that this will lead to increased applications

Courts Service Future Plans New District Court forms for Domestic Violence, aintenance, uardianship, Custody and Access have been approved by the Rules Committee. o live for istrict Court amily Law forms and processes is expected early June 2025.

Circuit Court forms New suite of amily Law forms designed and brought to the Circuit Court Rules Committee. Progress is advanced. Codevelopment of ivorce forms with judiciary, staff and practitioners continues.

Increases in District Family Court numbers continue The Family District Courts around Ireland continue to experience further increases in applications with an increase in 2024 of 6.7 to 63,871 applications for domestic violence, childcare, maintenance, foreign maintenance, guardianship, custody and access applications. This is a 20.68 on 2019 number of 52,924 and the greatest increase in 2024 was the number of childcare applications, up 24.5 from 2023 and 90 on 2019 applications - 11,457.

Family Law

Justice Minister Jim O’Callaghan TD, Chairperson of the board of the Courts Service, Ms. Justice Elizabeth Dunne, and CEO of the Courts Service Angela Denning at the recent launch of the Annual Report of the Courts Service for 2024

Conclusion The pressure on family law courts continue to rise in the High Court and istrict Court with Circuit Court figures stabilising. f particular concern for the family justice system is the significant pressure on the istrict Family Court caused in all areas but in particular by the huge increase in childcare applications since 2019.

As childcare applications are more complex, involved and lengthy than all other istrict amily Court cases, they hugely reduce the resources available for other District Court cases.

These increases in District Family Court applications support the view that the Family Courts Act 2024 will make a bad situation worse if the sections permitting divorce, judicial separation and cohabitation cases to be dealt with in the District Court where the jurisdiction is less than €1 million, are commenced. The transfer to the District Family Courts of these additional cases represent a retrograde rather than progressive step and must be reconsidered in light of the Courts Service figures. P

Source Courts Service Report 202 published uly 202 the Parchment 49

Tailte Éireann Application Tips Emer ilroy and Jac ueline allagher, both Casework managers in Tailte Éireann, presented at the recent DSBA Property Committee seminar entitled ‘Streamlining Conveyancing Processes: Collaborating with Tailte Éireann, Revenue and the Probate ffice’. The presenters provided practical guidance around the current application management policy

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he DSBA Property Committee held a very well attended seminar in the Radisson Blu Hotel on 18th June entitled ‘Streamlining Conveyancing Processes: Collaborating with Tailte ireann, Revenue and the robate O ce’.

It was an in-person practical and informative seminar with an emphasis on Public Bodies. The seminar highlighted current requirements and procedures and best practice. Anne Heenan, the ublin Probate fficer, focused on the most common queries arising on probate applications and shared information on foreign domicile applications. Anne also gave a short introduction to eProbate which is due to be introduced before the end of the year.

Emer Kilroy, Case Manager in Tailte Éireann, took the participants through First Registrations and her colleague Jac ueline allagher, Registration Manager, discussed the 10 most common reasons for rejections of applications in Tailte Éireann relating to registered lands. atie Clair, Principal fficer in the Revenue Commissioners, outlined the key obligations in respect of LPT and her colleague Katie O’Riordan provided an update on the recent changes to LPT in 2025, how to identify clearance issues and an overview of Vacant Homes Tax. Emer ilroy outlined Tailte ireann’s (T ) policy whereby all newly lodged applications are reviewed against a checklist. The checklists are available on the TÉ website and practitioners are strongly advised to engage with the relevant checklist when preparing their applications.

The initial review of a newly lodged application is carried out by a Clerical fficer, and it is an

50 the Parchment

administrative check only. Clerical fficers do not substantively evaluate the application. If the applicant does not comply with an item on the checklist, the check is stopped, and the application forms and all supporting documentation are returned to the lodging party at that point and the application is deemed ‘Rejected’. Once an application passes all Validation Unit checks, it will be forwarded to the relevant casework section in order that a more senior officer can substantively review and process the application to registration stage.

Emer then outlined some practical steps to take when preparing a First Registration application.

• Always go back to the Prescribed Forms when preparing a new application, available on the TÉ website, to avoid clerical errors.

Look at the Land Registration Rules Is the property suitable for orm 3 certification • Do not lodge application until all documents available - e.g. Releases.

• Keep a full copy of the dealing; we do not copy documents.

Ask Who is applying to be registered How is the property identified What burdens need to be registered on the olio eep it simple start with the latest ood Root of Title. Include an earlier deed only if required to prove identity or to support a registrable burden such as a covenant.

• If the application property is comprised of documentary and non-documentary possession portions - lodge separate applications so that the documentary portion can proceed.

Summer 2025 dsba.ie

Property / Conveyancing

Remember acts on searches must be explained to TÉ. E.g. “Undertaking furnished” is not adequate.

• When selling property the subject of a pending First Registration do not draft a deed of conveyance assignment identifying the property by reference to a dealing number.

• If property is sold on, the new owner must make their own First Registration application.

• On a Possession application use the updated Prescribed orms 5 and 6. S.I. 726 2021.

• Provide detailed clear and concise information around history of possession.

Include CAT certificate with the application.

Include relevant supporting documentation (e.g. utility bills) where available with the application to reduce queries.

• On Form 3 applications ensure Prescribed Form is not altered.

• Form 3 must be dated within one month of lodgement check before relodging any rejected application to ensure Form is still within time or lodge an updated Form 3.

Jac ueline allagher outlined the most common reasons for rejection on applications involving Registered lands, and gave practical advice when preparing applications.

• The Form 17 is an important document as errors on it can be carried across to the Folio. Ensure all information is accurate and the Form 17 is fully completed, dated and signed by a Practising Solicitor.

• Ensure that the correct application type is selected so that the correct fee generates.

• If relodging a rejected application, use the relodge facility which will connect the application with the previous application so that fees will carry to the new application.

• Always use the Prescribed Forms for Registered lands. Do not use old precedents which risk carryover of incorrect Folio numbers for example.

• Ensure deeds are dated and executed properly and include full County and Folio in operative clause.

Explain why parties’ names may appear differently across orm 17 eeds, e.g. maiden name. o not use correction fluid on eeds.

Check the Revenue Stamp Certificate and ensure parties to from correspond to deed lodged.

Ensure maps are Land Registry Compliant always check the mapping guidelines.

Emer and Jacqueline reminded practitioners that carefully proofreading documents before lodgement should pick up many the common errors which lead to rejection and query. The TÉ website has the resources practitioners need to ensure that their application will be lodged right first time.

• Land & Mapping Resources • Forms • Legal Practices • Legislation Registration uides Checklists • Fees and Payments The DSBA Property Committee were delighted with the positive feedback from the seminar and look forward to continued collaboration with our public sector colleagues. P

The initial review of a newly lodged application is carried out by a Clerical fficer, and it is an administrative check only

The DSBA Property Committee the Parchment 51

Conveyancing and Climate Change ichael Carrigan explores how new guidance from the Law Society of England and Wales is reshaping the responsibilities of property solicitors. rom rising flood risks to stricter energy rules, conveyancers must now factor environmental impacts into their advice or risk being left behind

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n ay 2025, the Law Society of England and Wales issued a new practice note on the relationship between climate change and property transactions, following earlier guidance published in 2021 and 2023.

This latest update sets out the duties and best practices for solicitors advising clients in conveyancing matters, with a particular emphasis on physical climate risks and practical responses.

There is growing support for the Irish legal profession to adopt a similarly forward-looking and climate-conscious approach (see Gordon Smith, The Change gent’ [2023] 117(1) aw Society Ga ette) and the Irish overnment’s commitment under the Climate Action and Low Carbon evelopment (Amendment) Act 2021. This Act stipulates that Ireland is to reach net ero emissions by 2050 and cut emissions by 51 by 2030 and will drive significant policy, regulatory, and market changes.

Changes will also be necessitated by the European nion’s Energy Performance of uildings irective ( U 202 2 ) which promotes the improvement of the energy performance of buildings and the reduction of greenhouse gas emissions from buildings within the nion, with a view to achieving a eroemission building stock by 2050. These changes introduce legal risks for property owners and developers, such as liability for emissions or noncompliance with new standards.

Key Responsibilities Climate change is affecting every sector of society, 52 the Parchment

and legal professionals (particularly conveyancers) must now incorporate climate-related risks into their legal advice.

The built environment, including the construction, heating, and cooling of properties, is responsible for nearly 40 of all global carbon emissions (ref ‘United ations nvironment rogramme 2020 2020 Global Status Report for Buildings and Construction Towards a ero-emission, cient and Resilient Buildings and Construction Sector’).

The risks associated with climate change fall into three principal categories • Physical Risks: These include direct threats such as flooding, coastal erosion, and subsidence. or example, if a property lies within a floodplain, solicitors must consider and communicate the implications of increased flood risk, insurance availability, and the potential impact on value and financing.

• Transition Risks: These arise from shifts in policy, public opinion, or market conditions in response to climate change. A change in buyer sentiment could affect asset values, or certain properties may become uninsurable or unmortgageable. A property’s uilding Energy Rating ( ER) will influence retrofit costs and or mortgage decisions.

• Liability and Legal Risks: These stem from the conse uences of physical and transition risks, including legal obligations and potential claims. or example, failing to disclose material climate risks might lead to litigation or regulatory penalties. The

Summer 2025 dsba.ie Michael Carrigan is an arbitrator, expert witness and consultant at HOMS Solicitors

Law Society advises that, where relevant, solicitors should inform clients of the legal implications associated with such risks as part of their due diligence and advice - see aw Society of ngland and Wales, [2025] Climate change and property’.

Broader Implications for Legal Practice Climate-related legal issues may not always fall within the core scope of a solicitor’s retainer, but like tax or regulatory matters, they can have a material impact. As climate change accelerates, such risks will increasingly influence legal practice.

Legal duties may therefore evolve to reflect a broader responsibility to account for climate risks.

Solicitors may need to address climate issues even if they fall outside the client’s explicit instructions, particularly when acting for clients focused on sustainability, insurance coverage, or long-term asset value.

Practical Guidance for Conveyancers The Law Society of England and Wales recommends that conveyancers explain to clients the option of commissioning a climate risk report and document the client’s decision. These reports are similar in function to traditional environmental due diligence but now encompass a broader scope, including A Property’s Carbon ootprint (particularly largescale commercial properties) Coastal erosion risk (e.g., cliffside properties) Subsidence vulnerability Existing and projected flood risks.

Conveyancing

Reports should provide tailored insights into how specific climate risks impact the individual property and offer practical recommendations.

Solicitors should clarify that they are not ualified to advise on the technical or financial conse uences of climate risks. Instead, they should recommend that clients consult relevant professionals such as building surveyors. If a solicitor is also acting for a lender, they must seek the lender’s instructions regarding any climate risk findings.

The scope of climate-related legal advice should be clearly defined in the engagement letter and or, addressed in the report on title to reflect findings as the transaction progresses.

Conclusion While not all solicitors currently have the expertise to provide in-depth advice on climate risks, these issues are becoming increasingly material to property transactions. It is likely climate-related considerations will become intertwined with legal instructions over time as the issue becomes increasingly central to the basis upon which such decisions are made.

In that context, there is a need for increased education and awareness in the Irish legal profession to ensure climate risks are properly assessed and communicated. y taking proactive steps now, legal practitioners can better protect clients, support informed decision-making, and align with the evolving regulatory landscape. P

Solicitors may need to address climate issues even if they fall outside the client’s explicit instructions, particularly when acting for clients focused on sustainability, insurance coverage, or long-term asset value

the Parchment 53

Residential Tenancies Reform New overnment reforms aim to boost rental housing supply while tightening protections for tenants. Paul cCutcheon explores what’s proposed and what it could mean for landlords and renters alike

O

n 10 June 2025, the overnment announced a range of new policy measures with two seemingly irreconcilable aims The boosting of investment in the supply of homes for rent and urther extending protections for renters by providing significant improvements to security of tenure for all new tenancies and introducing a national system of rent control which will, in times of high inflation, cap rent increases for most tenancies at a maximum of 2 .

What is Proposed Significant improvements to tenant protections for all new tenancies after arch 1st 2026 will be introduced with the aim of enhancing security of tenure. Landlords will be categorised as Larger landlords (those with four or more tenancies) and Smaller landlords (those with three or fewer tenancies).

Tenancies of unlimited duration are to be enhanced by the introduction of rolling, six-year tenancies for smaller landlords with restricted grounds for ending a tenancy.

While all landlords will continue to have the right to terminate a tenancy where there is a breach of tenant obligations or where the dwelling is no longer suited to the needs of the tenant household, larger landlords will no longer be able to avail of no fault evictions (where the tenant has complied with their obligations under their letting agreement) except in very limited circumstances.

Smaller landlords will be able to terminate a tenancy during the six-year tenancy but only where they re uire the dwelling for an immediate family member (a parent, 54 the Parchment

child or spouse) or where they face hardship , which will be defined in legislation. This will likely include separation, homelessness, an emigrant returning from abroad or bankruptcy.

All landlords who will enter into a new tenancy agreement on or after 1 arch 2026 will have the right to reset rent where the rent is below market at the end of each six-year tenancy unless a no fault eviction occurs. nder the Residential Tenancies Act, it will remain prohibited to set a rent above market rent. All landlords will be able to sell a property with a sitting tenant at any time. inally, to incentivise new development of apartments, rent increases in new developments, subject to a commencement notice to planning authorities on or after 10 June 2025 will be capped by the Consumer Price Index the 2 cap referred to above will not apply to these units.

To allow for sufficient time to develop the necessary legislation and to communicate the changes to landlords and tenants, it is proposed to introduce the new arrangements for tenancy protections from 1st arch 2026.

What has Happened As a first step to implementing these reforms, on 20 June 2025 the overnment passed the Residential Tenancies (Amendment) Act 2025 which extends Residential Protection ones ( RP s ) nationwide until 28 ebruary 2026. This means that any increase in rent on residential tenancies or on fees paid in respect of licences of student specific accommodation throughout Ireland are now subject to a cap of the lower of 2 or the inflation rate recorded by the Harmonised Index of Consumer Prices. The

Summer 2025 dsba.ie Paul McCutcheon is a partner and Head of Housing at Lavelle Partners LLP

overnment claims this will protect more than 40,000 tenancies which, before 20 June, were outside RP s.

The extension of RP s nationwide will also have a knock-on effect on the renting of certain holiday homes. The Residential Tenancies (Amendment) Act 2019 provided that the use of a house (or apartment) or part of a house apartment situated in an RP for shortterm letting purposes is a material change of use of the house apartment for planning purposes and could be subject to enforcement action from the relevant local planning authority unless the planning permission for the house apartment already permits short-term lettings.

Short-Term Letting is defined in the 2019 Act as a lease or licence of a house apartment or part of a house apartment for a period of 14 days or less. This could mean that thousands of holiday or Airbnb rental properties are now in breach of the Planning Acts if let out for periods of less than 15 days. The punishment to a landlord for entering into short-term lettings includes an initial fine of up to 5,000 together with daily fines of 1,500 and, however unlikely, up to six months in prison.

The net result of this, intentional or otherwise, may be that a significant number of units which previously were only available on more lucrative (for the landlord) short-term holiday lettings may now be available on the less lucrative long-term residential rental market. Alternatively, the units may be put up for sale increasing supply of housing in a second-hand market crying out for more stock.

How this plays out may be determined by the willingness of local authorities to bring enforcement proceedings against the properties in uestion to compel landlords to forego the more lucrative

Landlord and Tenant

Airbnb market and whether or not the overnment can implement the proposed Short-Term Letting and Tourism ill announced by its target date of ay 2026.

What will it Mean The overnment has given itself until 1 arch 2026 to fully implement its proposals so we await the draft legislation to properly assess how effective these proposals will be. It has never been popular politically to provide support to landlords, be they private or institutional, despite their regularly acknowledged importance to the rental market. As a result, it will be interesting to see how the overnment proposes to balance its twin aims of improving the situation for renters while, at the same time, stimulating investment and keeping existing landlords in the market.

While capping rent increases for up to six-year periods will sit well with tenants and the wider voting public, it’s hard to see how this will be an attraction to landlords or, as importantly, to investors in a world where interest rate and inflation spikes are likely to be far more common moving forward than in the first 20 years of the century.

The overnment needs to bear in mind when drafting the legislation that more than 25 of all landlords in Ireland rent just one property and the much-lambasted institutional landlords account for less than 10 of the 230,000 rental properties registered with the Residential Tenancies oard at the beginning of 2024.

The demarcation between large and small landlords is a step in the right direction in this regard but more could be done.

Introducing further incentives for landlords extending tax relief on interest payments for example - alongside the proposed tenant protections could be essential for the proposed policy changes to work. P the Parchment 55

Haughey’s Lasting Legacy Keith Walsh SC responds to a recent call in The Irish Times by Dr. Finola Kennedy for greater recognition of Charles Haughey’s legislative achievements, in particular the Succession Act 1965

To add some more context for more youthful readers, it is also impossible to separate Haughey’s positive contribution to the Irish state from his negative and corrupting influence, his charm from his menace, his ability to reform from his ability to subvert

56 the Parchment

W

hile the debate on the legacy of Charles J. Haughey may occupy summer schools and academics from here until eternity, the importance of the 1965 Succession Act is not controversial and cannot be understated. It was both timely and ahead of its time.

Charles J. Haughey was Minister for Justice from 1961 to 1964 and during his tenure there, according to his entry in the Dictionary of Legal Biography, he was regarded as a reforming minister, and the most able of the 14 Ministers for Justice served by Peter Berry, Secretary of the Department. He introduced major legal reform including the Succession Bill in 1964, which became law a year later after Haughey was succeeded by Brian Lenihan in 1965 when Haughey was moved to Agriculture where he was not as successful. While as a child of the 1970s and 80s it was impossible not to be aware of Mr. Haughey’s presence, it is important for the writer to be aware that many of the Parchment’s readers were born much later than this and may not be aware of Charles J. Haughey at all.

To add some more context for more youthful readers, it is impossible to separate Haughey’s positive contribution to the Irish state from his negative influence, and his ability to reform from his ability to subvert. While he was fond of quoting Shakespeare, and he himself is a figure worthy of Shakespeare, his epitaph will not be the one he chose for himself in his final speech to the ail I have done the state some service, and they know’t. No more of that”, nor may it be his eternal adversary Garret Fitzgerald’s cruel but accurate phrase that Haughey possessed a flawed pedigree”. More appropriately in the context of the Succession Act, his epitaph might be what Mark Anthony said of Julius Caesar in Shakespeare’s play the evil that men do lives after them The good is oft interred with their bones.” This article is an attempt to look at one of his most positive legislative legacies, the Succession Act and to explore what more needs to be done to build on this foundation.

The Succession Act 1965 stands alongside a number of key statutes which did not arrive until over 10 years later in the 1970s, such as the Family Home Protection Act, 1976, and the Maintenance of Spouses and Children Act, 1976, which elevated the legal position of wives.

It must be remembered that only in 1974 was children’s allowance paid to the mother rather than the ualified person’ being the father.

But families outside marriage have fared much worse than marital families in Irish law.

It was not until 1987 that the Status of Children Act was introduced, which was designed to equalise the rights of children whether born in or out of marriage, and not until the Civil Partnership and Certain Rights and bligations of Cohabitants Act 2010 that nonmarital relationships could lead to entitlements to potential succession rights.

Non-marital fathers have much greater rights now since the Child and amily Relationships Act 2015 but they are still less than marital father’s rights.

No immediate further legislative changes to the law in relation to non-marital family seem likely following the defeat of the constitutional referendum last year, save for one exception the necessary law to give effect to the findings in the O’Meara case in the Supreme Court.

The ireachtas will, in the Social Welfare ( ereaved Partner’s Pension and iscellaneous Provisions) ill 2025, provide for the payment of death benefit to surviving ualified cohabitants and their children.

But what the state gives to cohabitants, it takes from divorced and legally separated couples who will be deprived of any benefits under the same bill. It now excludes a different category of family the divorced and legally separated from the Widow or Widower’s Contributory Pension.

In celebrating 60 years of the Succession Act, we should perhaps move away from the personalities and times that forged the Act but instead focus on the work still to be done in ensuring that the position of the nonmarital family receives greater protection in Irish law. P

Summer 2025 dsba.ie Keith Walsh SC is a Dublin solicitor practising primarily in the area of family law and family disputes. He is a former editor of the Parchment

Opinion

the Parchment 57

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the Parchment 59

The DSBA Litigation Committee hosted a seminar on the 22nd May 2025.

Entitled “Knowing the right expert, when and how to use them in personal injury litigation – all you need to know regarding medical experts, engineers and cost accountants.”

The speakers were Gabriel Gavigan SC, Shane Galligan (Behan & Associates Cost Accountants), and Pat Culleton (PLC Engineering Services Limited). The Chair of the seminar was Michael Peart, Mediator, Arbitrator and former Judge of the Court of Appeal.

Left: Michael Peart, Gabriel Gavigan SC, Maria Lakes, Shane Galligan, Pat Culleton

Left: Niamh Wade and David Gregan Far left: MaryClaire Coakley, Sean Walsh and Peig Lenehan

Right: David Kehoe and Paul Bren Far right: Niall Farrell and Mary Cowhey

Left: Karol Ann Randles, John Haye and Louise Boughton Far left: Miriam Carr and Bronagh Murray

60 the Parchment

Summer 2025 dsba.ie Photography: Mark Harrison

DSBA Litigation Seminar

Right: David Browne, Paul Tracey, Francis Rowan, Monika Kealy and Philip Gleeson Far right: Gabriel Gavigan SC and Emma O’Neill

Left: Jasmine Rowe, Ali Murphy, Peter Boyle and Aisling Murphy Far left: Rebecca Slevin and Aneta Szczurek

Right: Jane Lanigan and Michael Peart Far right: Donal Terry and Paul Romeril

Left: Michael Peart, Retired Court of Appeal Judge, Mediator and Arbitrator Far left: Aisling O’Leary and John O’Leary

the Parchment 61

The DSBA hosted its annual dinner in the Westbury Hotel on the 9th May 2025.

This prestigious annual event was very well attended where colleagues and friends enjoyed a very special evening.

Left: Robert Ryan, Susan Lennox, Joan Doran and Jack Meehan

Left: Jack Leonard and Siofra Walsh Far left: Eamon and Jamie Harrington and Niall Cawley

Right: Natasha McKenna and Doirin Mulligan Far right: Gerry Doherty and Geraldine Clarke

Left: Matthew Kenny, Hanora Farrell, Tim McGrath and Chan Shi Far left: John White, Liz O’Donnell and Tony O’Sullivan

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Summer 2025 dsba.ie Photography: Mark Harrison

DSBA Annual Dinner

Right: Niall Cawley, Michael Sheil and Aileen Courtney Hughes Far right: Patricia Hickey and her husband Maurice

Left: Sarah Brown, Aisling Farrell, Brian Walsh and Jeanie Kelly Far left: Paul and Aisling Hanrahan

Right: Claire Millrine, Joanne Lawlor and Linda Cronin Far right: John and Inga Griffin

Right: Sarah Geary, Lisa Tyndall, Linda Smith and Mary Walsh Far right: John Glynn and Kevin O’Higgins

the Parchment 63

DSBA Property Seminar

The DSBA Property Committee held a very well-attended seminar on 18th June 2025 entitled ‘Streamlining Conveyancing processes, Collaborating with Tailte Éireann, Revenue and the Probate Office’.

The speakers were Emer Kilroy (Tailte Éireann), Anne Heenan (Dublin Probate Officer), Katie Clair (Revenue Commissioners) and Jacqueline Gallagher (Tailte Éireann). The seminar was chaired by Clodagh O’Hagan (Mullany Walsh Solicitors and Chair of the DSBA Property Committee).

Photography: Mark Harrison

Left to right: Emer Kilroy, Anne Heenan, Jacqueline Gallagher, Katie Clair, Clodagh O’Hagan and DSBA President Niall Cawley

Left: Joan O’Mahony and Barry Murray Far left: Katie O’Riordan and Louise Whelan

Right: Niall Farrell, Elaine Farrell, Barry Reidy, Sinead Dooley and Karina Carty Far right: Jill Lee and Pauline Horkan

Left: Sighle Duffy and Mary Henry Far left: Brendan Hyland and Jacqueline Mulroe

64 the Parchment

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