a product message image
{' '} {' '}
Limited time offer
SAVE % on your upgrade

Page 1

Parchment DSBA.IE

the

D UB LIN SOLICITORS’ B AR ASSOCIATION MAGAZ INE | WIN TER 2019 | ISSU E 82

CYBER ATTACK Don’t get caught!

MINISTER FOR CULTURE, HERITAGE AND THE GAELTACHT JOSEPHA MADIGAN T.D. INTERVIEWED THE FUTURE OF THE “OFFER TO MAKE AMENDS” IN DEFAMATION ACTIONS


Innovation is at the heart of everything we do

Coming soon

New features and enhanced functionality, delivering a more powerful user experience.

leapsoftware.ie


Winter 2019 dsba.ie

From the Editor

W

elcome to the winter edition of the Parchment. Christmas is almost upon us and a welcome festive break is almost within sight. In this edition, atrick alshe offers sage advice to employers regarding social media and the Christmas party. Continuing on the Christmas theme, Brian O’Sullivan gives family law practitioners some pointers at a time of year that can be difficult for some family law clients. However, it is Niall Cawley’s article on Cyber security and protecting client funds that will give those of you who run your own practice, a shiver up your spine. There are growing risks to online banking although we would find it very difficult to survive in business without it. Solicitor firms appear to be particularly susceptible by opportunistic cyber criminals and therefore safeguards are very important. Kevin O’Higgins interviews Josepha Madigan T.D. – Minister for Culture, Heritage and the Gaeltacht in this edition. Josepha is well known to many colleagues from her days in practice. She deserves much credit

for her private members’ bill which ultimately led to the Referendum last May and the reduction of the Divorce waiting time to two years. We also have articles on aspects of probate; medical negligence; practice management; taxation; debt; employment law; landlord and tenant and lots more. We remember two colleagues who sadly passed away in the recent past. Paul Robinson and Frank Ward were highly regarded by colleagues and clients alike and will be greatly missed. May I wish you and your loved ones a peaceful and relaxing Christmas and here’s to a successful and healthy 2020 for one and all.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2019/2020

TONY O’SULLIVAN DSBA President

JOSEPH O’MALLEY DSBA Vice President

DIEGO GALLAGHER Honorary Secretary

MATTHEW KENNY Treasurer

SUSAN MARTIN Programmes Director

NIALL CAWLEY Chair of Practice Management Committee

LAURA HORAN

PAUL RYAN Chair of Commercial Law Committee

JOAN DORAN Chair of Mental Health & Capacity Committee

KILLIAN O’REILLY Chair of Litigation Committee

RONAN McLOUGHLIN Chair of Property Law Committee

CIARA O’KENNEDY Chair of Employment Law Committee

GERARD O’CONNELL Chair of the Parchment Committee

AVRIL MANGAN Chair of Family Law & Minors Committee

TOM O’DWYER

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

PUBLISHED BY The Dublin Solicitors’ Bar Association, 1st Floor, 54 Dawson Street, Dublin 2. DSBA OFFICE, T: 01 670 6089 F: 01 670 6090 E: maura@dsba.ie DX 212011 W: www.dsba.ie ADVERTISING ENQUIRIES Caron Flynn T: 01 707 6022

The DSBA, its contributors and publisher do not accept any responsibility for loss or damage suffered as a result of the material contained in the Parchment. DISCLAIMER Advertisements are accepted at the discretion of the magazine which reserves the right to alter or refuse to publish any item submitted. Publication

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.

WHEN YOU HAVE FINISHED WITH THIS MAGAZINE PLEASE RECYCLE IT.

the Parchment 1


Winter 2019

Contents 6

Bless Minister

12

Social media and the Christmas party

14

Surviving Christmas – The Sanity Clause!

Kevin O’Higgins catches up with our colleague, Josepha Madigan – Government minister

Family psychotherapist Brian O’Sullivan advises how to support your family law clients this festive period

Two Year Divorce Wait Now Over

24

The Postman Doesn’t always Deliver

Keith Walsh welcomes the reduction in waiting time for a Divorce which has now come into effect

Matthew Kenny gives an update on road traffic law in light of a recent High Court judgment

26

Protection of Client Monies from Cyber Attack Niall Cawley warns of the risks of cyber attack and how best to ensure this does not happen to your practice

28

The Winds of Change David Rowe takes stock of where the Irish legal practices are at and what the future may hold

Dublin Solicitors’ Bar Association 1st Floor, 54 Dawson Street, Dublin 2, Ireland T: 01 670 6089 E: info@dsba.ie W: www.dsba.ie

2 the Parchment

page 6

BLESS MINISTER... JOSEPHA MADIGAN

Patrick Walshe warns employers to act reasonably and objectively if an employee acts inappropriately this festive season

20

I think the church should be ordaining women and I think it should be optional that priests can marry

06


Winter 2019 dsba.ie

Contents

REGULAR FEATURES 01 04 58 61

Editor’s Note President’s Message News Photocall

26 34

Commercial Tenancies – The Right to a New Tenancy Jackie Buckley and Matthew Austin go back to first principles and review a tenant’s right to a new tenancy

36

Dwelling House Relief

42

The Future Of the ‘Offer To Make Amends’ in Defamation Actions

Brian Broderick gives a helpful overview of this well-known tax relief mechanism

Karyn Harty examines the issue and impact it may have on defamation actions

46

Foreign Elements in Adminstrations Úna Burns of Stephenson Solicitors reminds us of how to deal with foreign elements in administrations

48

52

Protection of Principal Private Residences – Does the House Always Win? Jason Harte assesses where the courts stand in the protection of the principal private residence

52

Capacity Issues in Practice Áine Hynes provides an update on the implementation of the Assisted Decision-Making (Capacity) Act 2015 and recent developments in wardship

36 the Parchment 3


Message from the President

Building on a Great Tradition

I

t’s my pleasure as President to welcome you to this the 2019 winter edition of the Parchment magazine. This publication is a tribute to all the hard work undertaken by our Parchment team and it will continue to receive my full backing in the year ahead. The DSBA will turn 85 in 2020 and this presidential year will be particularly important for our profession, the legal services sector and the justice system. A number of important milestones will take place during the year. These milestones and external events will bring challenges but more importantly, significant opportunities to the legal profession and in these, the DSBA can and will play its part. My presidency will focus on helping members seize these opportunities while advancing efforts to deliver our overarching purpose of being the voice of Dublin solicitors and driving excellence in the profession. I think that every president for the last couple of years (as well as one or two K rime Ministers) have said with conviction in December, that next year the K will get Brexit done! It is no longer possible to have any confidence in the process but 2020 may be the year… although we do not know whether it will be with a deal or without. Either way there will be a need for Ireland and the to establish a new relationship with the K and this should aim to provide certainty to legal services and enable mutual market access. With one eye on Brexit the DSBA will continue to follow Mr Justice Frank Clarke’s lead and promote with our members in particular, our in-house members the use of the law of Ireland as the governing law of contracts and the use of our courts for dispute resolution. If Brexit wasn’t enough the new regime for the legal profession has commenced in the past couple of months and the Legal Services Regulatory Authority is now in charge of key parts of our professional lives. As of Friday 1st November 2019, limited liability partnerships have become a reality and the LSRA are taking in application forms. The DSBA campaigned tirelessly for this change and welcomes its introduction. I encourage all eligible firms to look at LL s and see if the structure will suit them. I have to say a huge thanks to the committees without whom there would be no CPDs and no new precedents. It must be 4 the Parchment

noted that the council and committees of the DSBA are entirely voluntary. We rely on our members and our member firms to engage with the DSB to provide their staff with the time to attend our committee meetings and related activities. To that end I would like to say a special thanks to Beauchamps for all the support that they have given me and the DSBA over the years. While there’s a lot of hard work going on in the DSBA ,there is also a social side. In November we held a black tie dinner to thank our immediate past President Greg Ryan for all his work as President. It has been my pleasure to work with Greg over the years as we both moved our way up through the organisation and in particular, to serve as Greg’s Vice President. Greg has had a wonderful year in which he hosted many successful events but the highlight has to be the wonderful conference in Lyon. In January 2020 we will be holding our annual dinner for the judiciary, an event we are delighted to host and as a thank you for all the support we receive from many judges for our activities in the DSBA, especially our seminars. On the topic of judges, I want to pay a special tribute to Mark Heslin, a solicitor and partner of mine at Beauchamps who has recently been appointed to the High Court. It is a stated aim of the DSBA to get more solicitors appointed to the bench and on behalf of the DSBA, I wish Mark well in the responsible role he has taken on. Our annual ball will take place in the Westin Hotel on Friday 28th February 2020. This will be a black tie affair and tickets are on sale now from the office. This spring gala

should help put the winter behind us. I am thrilled to announce that the 2020 DSBA annual conference will be taking place in September in the spectacular city of Lisbon, Portugal. The conference is now open for booking should you wish to join us for the conference, as to which please refer to the advertisement contained in this issue and the full details set out on the DSBA website. All of the above would not happen without our great team at head office – our CEO Maura Smith, Elaine Bracken and Anna Healy. They work diligently in the background keeping the many plates of the DSBA spinning. Will they get Brexit done in 2020? We shall see but in the meantime, the DSBA will continue to lead the fight for pride in the profession by emphasising the work of solicitors and their contribution to the prosperity of the economy, society and our justice system. I am excited by the year ahead as President of the DSBA and I look forward to 0 0 with confidence. As always at Christmas we remember those friends and colleagues who have left us but are not forgotten. In particular, I want to remember a close friend of mine, Paul Robinson, a partner with Arthur Cox whose unexpected death in May has left an enormous vacuum in the lives of all that knew him. Ar dheis Dé go raibh a anam. Nollaig Shona agus Ath bhliain faoi Mhaise Duit. Tony O’Sullivan, DSBA President


Bless Minister Kevin O’Higgins catches up with our colleague, Josepha Madigan, the first female solicitor at Cabinet and muses what it’s like to be in Cabinet

I

was lucky enough to interview Josepha Madigan previously for the Parchment. At that stage she had just been elected as a TD following her two-year tenure as a councillor. Her political journey is interesting on account of her solid legal background, her active membership of the DSBA Family Law Committee, her legal authorship of a substantial book on ADR in the family law context – and not least, as a vastly experienced family law practitioner. In that earlier interview we learned that her late father too had been a practitioner and had made his mark in both the law and in politics – like his daughter. Yet in Josepha’s case, along with her brother Patrick, they had repositioned the family firm putting their own stamp on things and that in the political sense, Josepha had chosen a different political home to that of her father. What neither Josepha nor I knew then when we met for that earlier interview in 2016, was that within a relatively short period she would be propelled into Cabinet some months later following her appointment in November 2017 as Minister for Culture, Heritage and the Gaeltacht. Not bad when you consider that a year or so earlier she was advising on the non-enforceability of pre nups, drafting separation agreements and filing family law proceedings, pretty much like a lot of us. But now she was a member of the Cabinet, a holder of high constitutional office, one of 15 Government ministers and heading 6 the Parchment

It’s a matter of getting the best people around me each week including my Secretary General and plotting out what it is I want to achieve and navigating a route to fulfill that

up a fascinating department with a €354m spend on cultural agencies as diverse as the National Concert Hall, the Abbey and Gate Theatres, the Chester Beatty Library and Crawford Gallery. Then on the Heritage side she has responsibility for the Heritage and Arts Councils, the National Library and diversely the National Waterways which has its headquarters in Enniskillen. Her Gaeltacht brief covers everything to do with the language and its economy as well as an Foras Teanga. We all may have our preconceived conceptions as to what a minister does. What happens in Cabinet and how does he or she operate in her department? Is it, I suggest cynically, a matter of the civil servants, à la Yes Minister, suggesting firm policy directions to the Minister and then congratulating him or her as to the Minister’s novel and original proposition! Josepha says: “It’s a matter of getting the best people around me each week including my Secretary General and plotting out what it is I want to achieve and navigating a route to fulfill what it is I want to make happen.” She is pleased to see a steady but unspectacular increase in spend to her Department in the current year. But what does her normal day look like? “I see my responsibilities and my time spread in various directions. There are my departmental responsibilities as above. Then there are my responsibilities as a member of Cabinet: preparing for Cabinet meetings,


Winter 2019 dsba.ie Kevin O'Higgins is a former President of the Law Society of Ireland and the DSBA, and principal of Kevin O’Higgins Solicitors, Blackrock

Interview

the Parchment 7


Minister Josepha Madigan T.D. in discussion with the Parchment’s Kevin O’Higgins

Women are a huge asset. It’s not that we’re any better but we think differently about things and that’s a good thing

Josepha at home with her two sons Daniel and Luke

8 the Parchment

attending those meetings and participating in those discussions.” Generally, she says that Cabinet sits on a Tuesday morning at 10am and will go on to 1pm or beyond as the need arises. The Fine Gael part of Government meets beforehand (in the Sycamore Room of Government Buildings from 8.30am) for a working breakfast. “I would have been up from 6.30 at home and fortunately Finbar (my husband) gets the boys going.” She has two boys Daniel (16), and Luke (14). “They go to Blackrock College and their dad usually gets them down there. My typical week would see me on the go for up to 90 hours. When the Dáil is in session you would have maybe the three days of Tuesday, Wednesday and Thursday being a week’s work crammed into those three days.” Dáil votes mean that on a typical Wednesday parliamentarians are incarcerated for up to midnight. With a tight Dáil arithmetic this means that a minister will not generally be paired and has to be available for votes. So one can see how essential it must be to have a stable and accommodating other half back at the ranch, particularly with two young boys and homework to get done and not least to be fed and watered. “While I live in an all-male household I take some comfort from at least one female being Poppy, our cocker spaniel who is much loved.”


Winter 2019 dsba.ie

Interview

Photography: Owen O'Connor

When not in the Dáil or in her Department, Josepha is in constant motion be it speaking engagements, at high brow events within the cultural sphere, attending functions, keeping an eye on constituency matters, attending political and community events, and eventually getting home. Being a non-drinker must help and she says: “No day is typical. It’s such a privilege to be doing a job I love.” On the day we met she had, in the couple of days prior, been to Brussels for a meeting of all of the other cultural ministers from the 27 EU countries. She made a formal presentation to them in English, French, German and Irish. She found that her Trinity degree in French and German came to good use. Back in Dublin she had media commitments appearing on Pat Kenny speaking about the role of women in the church. Thereafter there were both political and cultural events in Cork and Dublin. Her religion is important to her and she is a reader in her local church in Mount Merrion. On one occasion a year or so ago she was lampooned for having said mass. This was far from the truth notwithstanding the belt of the crozier she received from, of all people, Archbishop Martin. What actually happened was that on this particular Saturday evening she turned up for her normal reading slot for the 6pm mass. The priest was a no-show as a result of a mix up. Speaking to RTÉ’s Today with Sean O’Rourke, Josepha said that she and two other ministers of the word made the decision to lead the ceremony. She did not read the gospel, but led the readings from the altar. She went on to explain that she thinks that the Catholic Church needs to be more open with regard to ordaining women and lay people as the numbers of priests in Ireland continues to decline. “Unfortunately, we’re seeing across Ireland at the moment where there are just insufficient numbers of priests. The Church to me is a pinnacle of the community and the parish and I want that to continue, but I think that it would be helpful if the Church realised that people are still crying out for ritual and spirituality and that we need to involve lay people more. It might have been better for example, if there was training for us in a situation like that where we weren’t sure whether we could read the gospel or not. We chose not to in the end. We didn’t do the collections and everybody pulled together and handled it very well, but I think that there’s a bigger issue here. I think the church should be ordaining women and I think it should be optional that priests can marry.”

Jospeha Madigan's political career at a glance

First Elected a Dublin City Councillor - 2014 First Elected to Dail Eireann - 2016 Appointed to the Cabinet - 2017

Despite some media reports at the time Josepha did not perform the consecration of the bread and wine, as these can only be carried out by a priest. However, there was some pre-blessed bread in the church meaning mass-goers were able to receive communion. She is a fervent supporter of female activism in politics while at the same time, acutely conscious of the obstacles to be overcome. In her case before she entered politics she sought and took advice from a woman politician, Olivia Mitchell, then a TD herself. As to advice for aspiring female politicians she says: “I think get good childcare, get a good husband or partner, have the confidence and don’t over-think it,” she added. “As women we tend to think we have to know absolutely everything about everything before we apply for a job. But you

actually learn a lot in the job as well. Women are a huge asset. It’s not that we’re any better but we think differently about things and that’s a good thing.” Madigan enjoys the work because she feels she is really making a difference. She pioneered the legislation with a private members’ bill which received cross-party support to reduce the time limit for divorce from four years to two. As we all well know that legislation led to the successful referendum this year and the commencement of the Family Law Act 2019 earlier this month. “People say that a politician on her own can achieve little. Yet, to have been able to have achieved this legislative change has brought huge advantages for thousands of people throughout Ireland who are stuck in limbo land. So to be able to do that, then I feel I’ve achieved an awful lot for people.” P the Parchment 9


Fergal Dennehy is a litigation and dispute resolution partner at RDJ. Ciaran Cronin is an intern at RDJ and law student at UCC

Litigation

Can a Medical Negligence Claim Continue After a Defendant dies? ergal Dennehy and Ciaran Cronin assess the recent case of Gannon Maguire v O’Callaghan ( 01 I HC 4 4) and shed some light on the approach a court may take if a medical professional passes away before proceedings are initiated

The plaintiff argued that section ( )(b) was invalid with respect to provisions of article 40.3 of the constitution

10 the Parchment

I

n this case the plaintiff at the age of 1 , visited her G , Dr O’Callaghan on th March 013 complaining of a lump in her neck. The plaintiff alleged that upon examination, Dr O’Callaghan came to the conclusion that the lump in uestion was just mere tissue and nothing to be considered serious. The plaintiff was then referred to Temple Street Hospital for a blood test. However, after having said test, she subse uently heard nothing further. On 30th September 013, Dr O’Callaghan passed away. It wouldn’t be until th pril 01 – over two years later – that the plaintiff would be seen by another G . pon consultation, the plaintiff complained once more about the lump in her neck. She was referred for an urgent appointment to the Mater Hospital by the G where a biopsy was done. The results of the biopsy led to a diagnosis of papillary thyroid cancer which had spread to the plaintiff ’s lymph nodes. The plaintiff was immediately admitted for urgent surgery and radiotherapy sessions. On 11th October 01 the plaintiff attained her majority and on 13th pril 01 , a personal injuries summons was issued to the defendant, the executrix of her late husband. t trial the defendant sought a preliminary ruling as to whether the claim brought forward by the plaintiff would be statute barred under sections 8 and of the i i iabi it A t , legislation that covers the limitation period for initiating proceedings against a deceased defendant. The defendant contended that as proceedings were issued more than two years after Dr O’Callaghan’s death, the plaintiff ’s claim should be statute barred under section of the 1 61 ct as stated above. This section had previously been held to be constitutional by the Supreme Court in Moynihan v Greensmyth which would therefore suggest the court would take a similar approach in the case at hand. The plaintiff however, argued that section ( ) (b) of the 1 61 act was unconstitutional as such a constitutional issue can only be tried after a trial of the facts on oral evidence.

urthermore, the plaintiff contended that the defendant, the widow of the deceased doctor, could not rely on section ( )(b) as she was indemnified by an insurance company. Therefore, it would be “unconscionable and an abuse of process” for the insurance company to rely on said provision where there is no contest between the plaintiff and the estate of the defendant, the contest is instead between the plaintiff and the insurance company, resulting in a moot point of law. The plaintiff further argued that if section of the 1 61 act was found to be constitutional, it would therefore be incompatible with obligations the state has been given by the uropean Court of Human Rights. hen coming to its decision, the court considered previous cases that had dealt with similar issues to the case at hand. In Moynihan, as mentioned above, the plaintiff was injured in a road accident in 1 66 when she was 16 years old. The defendant was killed in the accident and the nominated defendant was his personal representative. roceedings were issued in 1 6 and the plaintiff attained her majority in 1 1. The plaintiff argued that section ( )(b) was invalid with respect to provisions of article 40.3 of the constitution. However, the court in case of Moynihan upheld the validity of the section. Here in this case the court held that the defendant’s application for a ruling on the Statute of Limitations would be granted. Section of the Civil Liability ct 1 61 had been held to be constitutional, thus making the plaintiff ’s claim statute barred. short hearing to decide this matter as a preliminary issue was decided to be appropriate.

Significance If viewed under a broader lens, Gannon Maguire v O’Callaghan has not brought about any significant change in the law. However, it has reaffirmed the current position laid out in Moynihan and Murphy in that section ( )(b) of the 1 61 ct is constitutional, meaning proceedings taken against a nominated defendant after the death of a medical practitioner after a two-year period would be statute barred by Irish law. P


DSBA

and Annual DSBA Book Awards

At the Banking Hall, Westin Hotel, Dublin

Friday 28th February 2020 Black Tie | Tickets €120.00 each For tickets, contact Maura at the DSBA Office on 01- 6706089 or maura@dsba.ie


Social Media and the Christmas Party It’s an unfortunate fact of life for employers that staff can sometimes enjoy themselves not wisely but too well at the Christmas party. Patrick Walshe warns employers to act reasonably and objectively if an employee acts inappropriately

W

hile the majority of office functions pass without incident, every year a minority of employers have to consider disciplinary action because their employees behaved improperly. An added dimension for employers in the age of the internet is the fact that people aren’t always circumspect about what they post online – disciplinary action may be necessary in circumstances where an employee posts something stupid for all the world to see and there is a clear link with their workplace. Christmas parties aren’t immune to this by any measure. The most notable example of this in recent years is the notorious incident when an employee of Wagamama posted a video of himself snorting cocaine while wearing a T-shirt with the company logo emblazoned across the front. That is the kind of publicity that employers will want to avoid at all costs. There are a number of simple precautions that an employer can take, particularly in advance of the office party. First of all, employers should ensure that they start from a position of strength – that they have in place policies addressing the use of social media, email

12 the Parchment

and the internet in the workplace. These policies should set out clear and understandable rules on what is, and what is not, permitted. A copy should be provided to all employees at the commencement of employment and as in all other cases, new staff should be re uired to confirm in writing that they’ve read and understood the policy. Among other things, the policy should establish what an employer is prepared to allow in practice – and in terms of social media, it should make it crystal–clear that employees should not post material on Facebook, Instagram or any other social media sites that have the potential to bring their employer into disrepute or otherwise damage the company’s image. Assuming an employer has such a policy in place, a reminder email can be easily circulated in advance of the Christmas party warning staff that while they are expected to enjoy themselves – this is a social occasion after all – they are also expected to behave responsibly and in an adult fashion. Naturally, an employer has other expectations in relation to staff behaviour at Christmas parties – any kind of unwanted or inappropriate behaviour is prohibited. Employers should always remember that


Winter 2019 dsba.ie Patrick Walshe is a partner in the employment and pensions group at Phillip Lee

their duty of care to provide a safe place of work during the working day extends to functions associated with the office – and a Christmas party is very much a social occasion that is associated with the workplace. Because of this, precisely the same standards apply and employers have just as much of a duty to protect their staff from harassment (sexual or otherwise) as they do in the office itself. mployers should make sure that staff are aware of the appropriate way to behave during the party. In addition, employers should be vigilant at the party itself – there’s no harm in stepping in to nip a problem in the bud. In larger organisations, managers can be informally asked to keep an eye on things. There’s obviously no need to be heavy–handed all that’s re uired is a bit of common sense. In circumstances where pre-emptive action isn’t enough and where an employee, despite being warned not to, goes ahead and posts something inappropriate on social media – such as images of drunken behaviour at the Christmas party, an employer isn’t without remedy. Assuming there’s a policy in place governing use of social media with a connection to the workplace, there’s nothing to prevent an employer from taking disciplinary

Employment Law

action. The courts and tribunals have had to look at the interaction between social media and the workplace with increasing frequency in recent years and a number of principles ow from that. To begin with, as a general rule the punishment should fit the crime – if an employee posts a drunken video but only a tiny number of people have actually watched it, a lesser sanction will definitely be appropriate. Putting it another way, if no damage has actually been suffered by the employer, it will be much more difficult to convince the RC that termination of employment to take one example, was the appropriate remedy. If, on the other hand, there is some evidence to suggest that the employer’s reputation has been damaged by the conduct in uestion (the agamama case comes to mind here), it may be appropriate to impose a more severe sanction, depending upon the circumstances. The key thing for employers to do is to maintain a cool head – and act reasonably and objectively. Employers shouldn’t be afraid to take action in genuine cases – but should always ensure that they’re proportionate in their response. P

Employers should always remember that their duty of care to provide a safe place of work during the working day extends to functions associated with the office the Parchment 13


Surviving Christmas – The Sanity Clause! Christmas means many things to many people and in the context of family law it can be an extremely stressful time of year. Systemic family psychotherapist Brian O’Sullivan advises how to support your family law clients during this festive period

I

f the Christmas adverts are anything to go by, you would be forgiven for thinking every family is happy, bustling and full of cosy inter-generational connections. Family law practitioners are acutely aware of the challenges faced by their clients, particularly those “normal range”, healthy, loving mothers and fathers in Ireland who are experiencing contact difficulties between their children and themselves as a result of child estrangement/parental alienation. We all want Christmas to be magical, in that way we never quite grow up. The pain of Christmas without loved ones close by, especially our children, is a reminder that the family we built; the family dynamic we hoped would provide security, safety, warmth, happiness and precious memories for our children (with us) didn’t survive. e the estranged parents, arrived at this place called separation; our children are there too (in their way) and it’s a different and difficult place. arents who find themselves in this situation will be experiencing profound sadness, loss, worry, trauma and despair. They likely will feel unjustly criticised and judged by professionals and others. They may find themselves navigating profound stigma as they find their parental identity being re-constructed as a “dangerous” or “unsafe” parent. This new identity may be diametrically opposed to their own core identity and beliefs about the role of a healthy normal range parent. Christmas time may illuminate all these themes for these parents.

14 the Parchment

These parents may present with rigid and definite positions and views. Additionally, they can present as angry and frustrated, as well as feeling let down by professionals and agencies. This can be considered a normal presentation for these parents, albeit a presentation where they may self-sabotage themselves in the process. Essentially, these parents are navigating a profound trauma, loss and grief over a sustained and enduring period where closure remains elusive to them. Many of these parents will say that at least with a funeral there may be some hope of closure. In short, for the parent, these experiences may be a sorrow that never ends. Where others hear Christmas bells, the estranged and alienated parent can hear the metaphorical clanging chimes. Some practitioners may say these dynamics are normal and transient in family law matters however, informed practitioners will acknowledge this is not borne out in the literature. Indeed, often relationships fractured in this way never spontaneously reconcile. So, as a family law practitioner, what if anything, can you say to your clients in this position as the Christmas period approaches? 1. It is crucial that alienated parents begin to make informed choices and decisions regarding their relationships with their children in this space. 2. It is important to ensure that the client has adequate therapeutic supports and resources in place. They could access an family psychotherapist who can work with the client collaboratively to provide a


Winter 2019 dsba.ie Brian O’Sullivan iis a systemic family psychotherapist. He is a registered and accredited member of the Irish Council of Psychotherapy and the Family Therapy Association of Ireland

3.

4.

. 6. 7. 8.

comprehensive self-care plan that will sustain the client beyond the Christmas period and into the New Year. Remember the estranged parent cannot parent an alienated child in the same way they did when living with the other parent. A healthy, normal range parent will likely unwittingly sabotage themselves in this context. Gently help this parent to appreciate and understand this. The client needs to become informed about the dynamics of parental alienation and its impact on children too. A valid and reliable source of peer reviewed literature can be found here; www.parentalalienation.eu The targeted or rejected parent can try to spark critical thinking skills in the child by exploring the child’s perceptions. Always be empathic with the child. They are victims in this dynamic. Try to spark memories and assist the parent to appreciate the deep attachment that is underneath the alienation. “ ut your children first” – if the alienating parent is making it extremely difficult for a targeted parent (your client) to see their children, or to experience quality time with their children, assist that client to appreciate the benefit to the children of keeping them out of the middle. “Put your kids first. s hard as it is, refrain from placing the children in the place to choose between you and the alienator”.

ocus on the time available (if any) not on the lack of time, inequality, unfairness, or the other parent’s time and behaviours; creating a focus on the quality of time parents and children spend together and finding ways to make that time meaningful and special; as a positive that will help the children. 10. Be exible – compromise with the alienator. If a parent cannot manage to arrange to see their children on the exact holiday date, celebrate a day earlier or later. Believe me, the exact date is probably more important to you than your kids. This advice often applies to all parents, (separated or otherwise), many families usefully take an emphasis off th December to create a special day, special routines and “Christmas memories for all” on other days within the Christmas period; estranged and alienated parents just have to think slightly outside the “Hallmark card”. 11. Take care of yourself – this is extremely important or else you will find yourself adding to your emotional and psychological trauma. This helps no-one especially you. Get enough sleep, exercise and keep busy. Spend time with family and friends if you cannot be with your kids. Some parents find it helpful to link in with nephews and nieces at this time. Be kind to yourself – indeed, perhaps Christmas is a time to be excessively gentle on yourself (for a couple of days, then, like every year, it will soon enough be Christmas past ). P

Family Law

.

Assist that client to appreciate the benefit to the children of keeping them out of the middle

the Parchment 15


Pauline Louth is a partner in the commercial and corporate team at Beauchamps

Consumer Law

Consumer Protection (Gift Vouchers) Act 2019 signed into law Pauline Louth reports on welcome legislation for consumers following the President, Michael D Higgins, recently signing into law the Consumer rotection (Gift ouchers) ct 01 ( ct)

Under the previous regime, retailers were free to determine the expiry dates of their gift vouchers, with some expiring after as little as six months 16 the Parchment

Main Provisions

Prior Situation

The ct contains a few substantive changes to the way gift vouchers operate including: 1. Gift vouchers must be valid for at least five years . If the voucher contains an expiry date, then the expiry date must be specified on the voucher 3. gift voucher shall not force the consumer to redeem the full value of the gift voucher in one transaction 4. If the voucher is mostly redeemed but the remaining balance left over is so small that it cannot be redeemed, then the trader is obliged to reimburse the remaining balance to the person. The trader can do this in cash, by electronic funds transfer or by issuing a new voucher of the appropriate value . gift voucher contract is not allowed to limit the number of gift vouchers that a person is allowed to redeem in one transaction 6. here a gift voucher contract contains a provision for how a gift voucher can be replaced if it is lost or stolen, then the replacement gift voucher must not expire before the date of the original gift voucher.

Before this ct there was no regulation of expiry dates of gift vouchers and there was no specific legislation dealing with gift vouchers, although gift vouchers supplied to consumers were subject to the provisions of general consumer protection legislation. nder the previous regime, retailers were free to determine the expiry dates of their gift vouchers, with some expiring after as little as six months. Retailers were able to refuse to give change (even in voucher form) for a purchase below the value of a gift card. Retailers also often refused to accept vouchers during sale periods. Many gift voucher issuers did not replace lost or stolen gift vouchers.

Welcome Change The ct is good news for consumers, in particular in light of the pre-Christmas shopping season. lthough the ct fails to address all of the perceived issues with gift vouchers (e.g. it does not deal with inactive balances or retailers’ fees), the protections that it brings for consumers are to be welcomed. P


Legal Contingency Insurance Aviva has many years experience of providing insurance solutions for a wide range of Legal Contingency issues to those in the legal profession. Our product offerings include: • Administration Bonds

• Missing Beneficiary Insurance

• Defective Titles

• Restrictive Covenants

• Lost Title Deeds

• Rights of Way

• Lost Shares Indemnities • Easement of Services Indemnities

You’re safe in the hands of Aviva To arrange cover or discuss any of the above: Email: contingencyservices@aviva.com or call:

Karl Dobbyn 01 898 7710.

Aviva Insurance Ireland DAC. Aviva Insurance Ireland Designated Activity Company, Trading as Aviva is regulated by the Central Bank of Ireland. A private Company limited by shares. Registered in Ireland no 605769. Registered office: One park Place, Hatch Street, Dublin 2 Ireland. D02 E651. Law society ad - Karl - 190 x 137 July '19.indd 1

12/07/2019 16:40


Two Year Divorce Wait Now Over Keith Walsh welcomes the reduction in waiting time for Divorce which has now come into effect. However, he hails the new amily Law Act 2019 as doing more than just reducing the waiting time

Parts I and II of the Family Law Act 2019 commenced on 1st December 2019. Part III Recognition of UK divorces not commenced. The amily Law ct 01 gives practical effect to the referendum held on 4 May, in which the people voted to amend the Constitution to remove from article 41.3. of the Constitution the minimum living-apart period for spouses seeking a divorce and to replace the text of article 41.3.3 on foreign divorces. arts I and II of the amily Law ct 01 which were commenced on 1st December 2019 amend the Judicial Separation and amily Law ct, 1 8 , the amily Law Divorce ct, 1 6 and the Civil artnership and Certain Rights and Obligations of Cohabitants ct, 010. art III which is not commenced provides for the recognition of divorces, legal separations and marriage annulments granted under the law of Northern Ireland, Scotland, ngland and ales, and Gibraltar, in the event that the K withdraws from the without an agreement that applies to this area of law. This latter art mirrors the provisions of Brussels II. The principal effect of the act is that the living-apart re uirement has been reduced for divorce proceedings, and the definition of living apart has been clarified for those spouses living under the same roof, for both divorce and civil-partnership actions, as follows: 1. Living Apart Period pre Divorce Reduced from Four to Two Years The living apart re uirement for couples re uired before initiating divorce proceedings will be 20 the Parchment

reduced by amending section of the amily Law Di or e A t to reduce the minimum living apart period specified in that act to two years during the previous three years (reduced from four during the previous five years). 2. ‘Living Apart’ Clarified The phrase living apart’ is clarified in the context of spouses who still live under the same roof and they will be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship. This change in the definition of living apart will make it easier for couples residing together, though living apart, to apply for divorce. Section 3.1(b) of the 01 act states that a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature. These amendments will apply to proceedings for the grant of a decree of divorce under the act of 1 6 (a) that are instituted on or after the date section3 of the amily Law ct 01 comes into operation- 1st December 01 , or (b) that have been instituted, and have not been concluded, prior to such date. 3. ‘Intimate and Committee Relationship’ The phrase intimate and committed relationship was used in the i i artnershi and ertain ights and b igations o ohabitants A t when defining a cohabitant in section 1 (1) as one of two adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed


Winter 2019 dsba.ie Keith Walsh is a family law solicitor and chaired the Law Society LSRA Legal Costs Working Group. Stephen Fitzpatrick is principal of Peter Fitzpatrick & Co. Legal Cost Accountants. He is a board member of the LSRA

relationship. This phrase was analysed in detail by Baker J inDC v DR 01 I HC 30 , paragraph 83 and following). A A 000 1 IR 4 , the leading case on living apart before the change to the 01 act, may still be relevant, as McCracken J analysed the concept of living apart. 4. Judicial Separation Changes i. There are changes to the grounds for a decree of judicial separation. There has been a harmonisation of the concept of living apart’ as a ground for judicial separation, as well as divorce. The phrase in an intimate and committed relationship’ has been imported into section of the 1 8 act by section .1(c) of the 01 act. ii. The 01 act reduces to one year the minimum living-apart period of three years that applies to judicial separation applications in cases where the respondent does not consent to the decree of judicial separation being granted (see section .1(e) of the 1 8 act). This change will apply to proceedings for the grant of a decree of judicial separation under the act of 1 8 that: (a) are instituted on or after the date this section of the 01 act comes into operation 1st December 01 , or (b) to proceedings that have been instituted, and have not been concluded, prior to such date. This change may allow the one year no-fault, living-apart period to overtake the current default ground for a decree of judicial separation .1(f) that the marriage has broken down, to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the

Family Law

spouses for a period of at least one year immediately preceding the date of the application. 5. Changes for Cohabitants i. The reduced living-apart time period instead of 4 years criteria for divorce is re ected by a change to the criteria permitting a person to be considered as a ualified cohabitant by amending section 1 (6) of the Civil artnership and Certain Rights and Obligations of Cohabitants ct 010. person may still be a ualified cohabitant if either cohabitant is married to another person, provided they were living apart for two of the previous three years. This reduces the pre-existing re uirement in line with the reduction in the living apart re uirement for divorce from four of the previous five years to two of the previous three years. The relationship must not have ended before the coming into operation of section 4( ) of the amily Law ct 01 . ii. similar provision clarifies the term living apart’ in the same way as when dealing with dissolution of civil partnerships. This change will only apply to proceedings for the grant of a decree of dissolution of a civil partnership that:(a) are instituted on or after the date section 4 of the amily Law ct 01 comes into operation, or (b) have been instituted, and have not been concluded, prior to such date. The changes to practice and procedures introduced by the amily Law ct 01 will make a very significant difference to the practice of family law and bring much needed reform. P

The principal effect of the act is that the living-apart requirement has been reduced for divorce proceedings, and the definition of living apart has been clarified for those spouses living under the same roof the Parchment 21


Edward Lyons is an associate in the litigation and dispute resolution team at Beauchamps Solicitors. Mataka Flynn, trainee solicitor assisted in research

Disciplinary

The UK Solicitors’ Disciplinary Tribunal Lowers Standard of Proof to ‘Balance of Probabilities’ The K Solicitors’ Disciplinary Tribunal (SDT) has dropped the standard of proof to be applied in professional disciplinary proceedings from the criminal standard of beyond a reasonable doubt’ to the civil standard of balance of probabilities’. dward Lyons says this change was part of a wider consultation of the Solicitors’ Regulatory uthority rules and procedures in the K and was due to come into force on November 01 Background

The criminal standard re uires proof beyond all reasonable doubt and is a high threshold to meet while the civil standard merely re uires evidence that the occurrence of alleged conduct is more probable than not

22 the Parchment

In September the Legal Services Board approved an application by the SDT to amend the standard of proof they adopted in professional misconduct en uiries in respect of K solicitors. The move by the SDT mirrors that of other professional disciplinary bodies in the K who adopt the civil standard of proof and is seen as promoting greater protection of the interests of the public.

Standard of proof

This change has lowered the level of certainty and degree of evidence re uired to establish proof in disciplinary proceedings of the SDT which adjudicates upon alleged breaches of rules and regulations by solicitors. nd the change will potentially make it easier to make findings against solicitors. The criminal standard re uires proof beyond all reasonable doubt and is a high threshold to meet, while the civil standard merely re uires evidence that the occurrence of alleged conduct is more probable than not.

The Irish Position In Ireland once a statutory body makes findings following disciplinary procedures, the appropriate sanction to be imposed must be confirmed by the High Court. Most statutory bodies, including the Irish Solicitors’ Disciplinary Tribunal, apply the criminal standard of proof in disciplinary procedures, with few exceptions. This can be traced back to O’Laoire v Medical Council where Mr Justice Keane outlined how these proceedings are not of the same nature as civil litigation, the court could not proceed because of findings based on probabilities and the onus lies with the Medical Council to prove beyond reasonable doubt every relevant averment of fact not admitted and to establish beyond reasonable doubt that such facts, as so proved or admitted, constituted professional misconduct. In a more recent decision of Prendiville v Medical Council, Mr Justice Kelly highlighted that he was satisfied that the high standards of natural justice must apply with strict adherence, as the allegations made were very serious and the whole professional standing of the applicants was at stake.

Commentary In the K the SDT can impose sanctions without the re uirement for court confirmation. ntil such a time as there is a considerable judicial diversion from established case law and or a constitutional amendment, the standard of proof in many professional disciplinary proceedings will continue to be allied to the criminal standard of proof, being beyond a reasonable doubt. P


YOUR LEGAL COSTS PARTNER McCann Sadlier, Legal Costs Accountants has over 100 years of combined Legal Costs experience. Our specialised personnel provide all of our clients with a first class, expedient service. We believe that it is vital to be alert in respect of all developments in this ever changing area of the law, enabling us to provide solid, consistent and up to date advice. We are proud to announce the opening of our second office, situated in Blackrock, Co Dublin. Please see our contact details below.

Expedient | Expert | Secure PHONE: 01 840 7069 EMAIL: info@mccannsadlier.ie WEB: www.mccannsadlier.ie McCann Sadlier Legal Costs Accountants 11 North Street Business Park Swords, Co Dublin. K67 XH29 DX 91010 Swords McCann Sadlier Legal Costs Accountants 12 Priory Office Park Stillorgan Road, Blackrock Co. Dublin A94 N2V3 DX 7003 Blackrock


The Postman Doesn’t Always Deliver Solicitors who practise in the area of criminal and road traffic law may be aware of the recent High Court judgment of Justice Ní Raifeartaigh (now of the Court of ppeal) in Neville and O’Byrne v the D . Matthew Kenny assesses the position and advises that it may be prudent for your client to contest service

T

he relevant impugned provision is Section 44(10) of the Road Traffic ct, 016: here a erson is ser ed ith a summons a om anied b a se tion noti e in res e t o a ed harge o en e it sha not be a de en e or the erson ser ed ith the summons to sho that he or she as not ser ed ith a ed harge noti e in res e t o the a eged o en e in a ordan e ith se tion Section 3 ( ) states: A rose ution in res e t o a ed harge o en e sha not be instituted un ess a ed harge noti e in res e t o the a eged o en e has been ser ed on the erson on erned under this se tion and the erson ai s to a the ed harge in a ordan e ith the noti e. The legal basis for the suggested practical application of the judgment of Ní Raifeartaigh is stated simply in her judgment. Judge Ní Raifeartaigh has decided that the tension which exists between section 44(10) of the 016 ct and section 3 ( ) of the 010 Road Traffic ct cannot be reconciled by the State’s suggestions that the different treatment of the varying types of motorists is not significant or if it is, it was clearly the intention of the legislator to remove this defence (presumably as they were getting a third and final chance to avoid a conviction on receipt of a section 44 yellow notice). However, Ms Justice N Raifeartaigh’s judgment is clear and rules that section 44(10) is unlawful and denies a defendant the right to a fair trial as they are not allowed to raise a defence of not having received the fixed charge notice.

24 the Parchment

Now that section 44(10) is no longer law, defendants can rely on section 3 ( ) of the 010 ct and the fact they did not receive the fixed charge notice as a defence to the substantive allegation. To understand how Judge N Raifeartaigh arrived at her conclusion we should summarise her judgment and the law on fixed charge notices to date. Fixed charge notices are designed to relieve the offending motorist, detecting garda or local authority and court services of having to administer justice within an already busy court list. In her judgment Judge Ní Raifeartaigh told the rather colourful and helpful hypothetical story of three different types of offenders who may receive a fixed charge notice. They are the motorist who commits a fixed charge offence, receives the fixed charge notice and pays the fixed charge within 6 days, having accepted the fixed penalty. The second motorist is the person who may or may not have commited the fixed charge offence but did not receive the fixed charge notice and when they receive the summons, decide to attend court and rely on the fact they did not receive the fixed charge notice in their defence. The third motorist is the classic chancer’ who commits the offence, receives the fixed charge notice but ignores it and hopes it will all go away. It is the second type of motorist that this judgment protects. The effect of the judgment is that a solicitor ought to take the following road map (sorry for pun): To establish from the garda prosecution authority if they sent the fixed charge notice by ordinary post or other means.


Winter 2019 dsba.ie Matthew Kenny is a member of the Council of the DSBA and a partner in O’Sullivan Kenny Solicitors and was a co-author of Woods on Road Traffic Law 2018

To establish if the State accepts that they can only prove postage and not receipt of the fixed charge notice. If necessary establish in evidence from the garda that their method of post was as per their pre-court disclosure. • It is a matter for experienced solicitors to decide if they must call their client or any other witness to rebut the presumption but it would seem that the extent of the logic of the judgment of Ní Raifeartaigh is in fact, that the presumption could be rebutted by the admission in evidence by the prosecution witness that they can only prove they sent the notice and not that the defendant received it. • It is suggested that Ms Justice Ní Raifeartaigh interpreted ser ed in the legislation as meaning osted and re ei ed and therefore, if a defence solicitor raises the issue of service and cross examines the garda witness to confirm they posted but cannot offer evidence of service then arguably the presumption has been rebutted as the court has a reasonable doubt. However, this final and critical issue is one that is still unclear. It is already the practice of most judges to decide the issue of receipt by the defendant on the balance of probabilities and therefore expect to hear evidence from the defendant or a witness for the defendant (a stay at home partner spouse who may take receipt of the post).

• So it is arguable that once a defendant raises the defence of non-receipt of the fixed charge notice, then the court ought to decide the issue on a reasonable doubt rather than on the balance of probabilities. If the court accepts that your client did not receive the fixed charge notice then the court must dismiss the summons relating to the fixed charge offence. The court has no discretion, it cannot decide that your client did not receive the fixed charge notice but proceed to hear the substantive offence (usually speeding or holding a phone). The analogy to be drawn for the reasoning of Judge Ní Raifeartaigh is to those cases where the defendant suggests the prosecution was commenced out of time and proves to the court the fact that the prosecution was commenced out of time. Whilst the time limit to commence minor offences is not an ingredient of those same offenses, the practice and procedures of the District Court and the legislation which allows for the commencement of minor offences is a relevant proof. If the defence seeks to challenge the issue of the time limits then, similar to the issue of service of a fixed charge notice, they are permitted to do so according to law and to deny them that right on the basis it does not go to the merits of the offence before the court is not a legitimate response by the State. So whilst the law is uid and may be updated by legislation or an appeal to the Supreme Court it seems that for now the prudent advice to a client whose instructions relate to this recent judgment, is to consider contesting the service. P

Criminal Law

Fixed charge notices are designed to relieve the offending motorist, detecting gardaí or local authority and court services of having to administer justice within an already busy court list the Parchment 25


Protection of Client Funds from Cyber Attack Protection of client funds is something which every practice should have to the forefront of their thinking when it comes to the operation of the client account(s). Niall Cawley warns of the risks of cyber attack and how best to ensure this does not happen to your practice

Cyber Attack It has become a feature of modern practice that our client funds have become an increasingly interesting and attractive target for the criminal fraternity. According to the Smith and Williams Annual Survey of Irish Law irms for 018 01 , 36 were subject to a cyber attack and when you move up into the top 20 firms the amount of assaults on practices rises to 6 . Attacks in many forms can include surreptitious placement of software in a computer system to record the accounts transactions and data of solicitors and can include access to emails for the purposes of intercepting communications and can also result in breaches of internal emailing systems where they are used for example, to give instructions for the transfer of funds to third parties. As you will be aware from no doubt attending seminars on cyber security the very size of our client accounts with the very large amounts of money which we hold for various clients has made it an attractive target for determined and intelligent criminals who can with little or no risk to themselves spend considerable amounts of time and effort seeking to break into solicitors’ accounts for the purposes of stealing funds.

Responses to Cyber Attacks The risk to solicitors’ practices gave rise to: 1. Cyber insurance policies which is an added expense to the solicitor’s practice to insure against cyber risks to an agreed amount: . n amendment clarification that the solicitor’s indemnity insurance cover that has been regulated by the Law Society which provides for an extension of the concept of claim through the criminal action of third parties against client funds and great care has to be taken in ensuring that you follow precisely the sequence necessary to enable you to avail of that policy. 26 the Parchment

3. However, whether it is cyber insurance or you continue to rely on your professional indemnity insurance these insurance policies are only good up to the value that is covered by them and given that the current professional indemnity insurance limit is €1,500,000, consideration needs to be given to the consequence of a cyber attack which results in the loss of amounts in excess of €1,500,000 or whatever amount you are insured for.

Technical Cyber Defences As many of you will be aware many advices are available to us in relation to protection of your practice from a cyber attack. These defences will include security software; keeping your software up to date; avoiding what they call “clicking through emails”; being suspicious of any email you receive especially on unsolicited emails; having strong passwords which are regularly changed; training staff in relation to IT security protecting your system from for example, people using USB keys in your main drive for the purposes of giving you documentation, etc and having appropriate policies in place for all of the above. Most of us however, are not experts in this area. hile larger firms can afford to employ staff, sometimes full-time staff, to protect their systems as best they can – the rest of us I am afraid cannot. In any event I would caution against any complacency at any level within the profession. e are of course aware of cases involving hacking of hyper secure systems such as the BI and the entagon. I think it is fair to say that the systems that lawyers operate are far from hyper secure, and we are therefore exposed to risks and the concern ultimately is that even if you follow all of the advice that you’re being given at the moment, sooner or later someone may suffer a catastrophic loss. In those circumstances it may be that we need to start looking at solutions protections outside of the technological area.


Winter 2019 dsba.ie Niall Cawley is chair of the DSBA Practice Management Committee. He is principal of his own practice in Blackrock

Non Techical Defences I would suggest that in order protect ourselves from loss that we should also consider certain steps which are not of a technological nature and these would be: 1. The use of online banking systems that do not allow the transfer of funds to third parties. I am aware that AIB for example, operate an internet banking service whereby you can access your accounts, you can access your statements, you can see payments coming and going and you can transfer monies between your accounts but you cannot transfer money outside of your accounts to third parties without actually going into the branch and doing it with paper. . s a step down from the above, if you cannot attend branches for the purposes of doing transfers then you might want to consider having the facility to transfer funds out of the jurisdiction disabled from your software package so that you can only transfer to bank accounts in the Republic of Ireland. I am advised the vast majority of attempted cyber theft relates to transfers out of the jurisdiction. 3. Of course we can have more than one client bank account. This writer is aware that some firms operate on occasion client accounts in different banks. The advantage of this is that there would never be in any one bank account an amount which exceeds the very least the insurance that we have in place and the access to the separate banks would be completely different and distinct using different codes and software in each case, thereby substantially reducing the risk of both being hacked at the same time. 4. Of course we can use sub accounts if I may call them that effectively, opening up accounts in the bank to deal with excess funds held in the client account which are not immediately re uired. You would place excess funds in it from time to

Practice Management

time and replace them in your normal account as needed. The advantage of this type of account, it is not online and is not accessible online so you would have to go into the branch to take monies out of it but this should be relatively infre uent. . ith regard to email it is absolutely essential that if you receive an email with account details in them that you verify that at the very least by speaking to the client that you know, to confirm that you are talking to the right person. It is also essential that whoever does that check is a person who is actually triggering the transfer as opposed to the person who has ordered the transfer. This is essential because I am advised of cases where hackers got into internal office email systems and were able to intercept an instruction from a partner in the firm to the bookkeeper in the firm where the partner was supposedly saying that he checked everything and it was good, whereas in fact while the partner had checked it, the email being intercepted gave false account data to the bookkeeper. This was caught but it might not have been. 6. In areas of probate we can of course open separate probate accounts for larger firms. As you are aware you’re obliged in certain circumstances to open them in any event and I am suggesting that the larger estates this would minimise the risk to funds. In the end what I am urging upon those reading this article is to consider carefully the fact that even where you are insured, that you will perhaps frequently have funds that exceed your insurance cover. Care needs to be taken to manage your accounts albeit that this may be time consuming to ensure that your risk profile is kept as low as possible so that if you do indeed suffer a catastrophic loss of funds at some point (which I would not wish on anyone) that at the very least you are covered by your Insurance. P

While larger firms can afford to employ staff, sometimes full-time staff, to protect their systems as best they can the rest of us I am afraid cannot

the Parchment 27


The Winds of Change Business advisor to Irish legal practices, David Rowe takes stock of where the market is at and what the future may hold

A Changing Cycle Irish law firms have enjoyed significant year-on-year growth in most work areas and across most locations in the country. This started in Dublin but in more recent years the growth has been stronger outside of Dublin. This improvement has been multifaceted and can be attributed to a rise in volumes, a rise in price and better quality instructions. Challenges have also emerged such as difficulties in finding staff, salary expectations and the constant cash ow challenges. hile overall profitability has improved over the period, margins have actually decreased from an average of 6 in 014 to an average of 1 in 01 . The decrease is principally due to rising staff costs both in pay increases and staffing up. e have to remember that 014 was just the beginning of the recovery after many firms had gone through a period of redundancies and pay cuts.

The Evidence on the Ground Many business owners of Irish law firms we meet are cautious about the next 1 to 18 months but that in itself does not provide evidence of what the future holds. redicting is difficult and Irish law firms are now very exposed to the Irish economy, which in turn is very vulnerable to the global political and economic landscape. There are however, signs of change. Property/ conveyancing departments are definitely uieter across most areas of the profession. We are beginning to see people and resources being redeployed from property departments to other areas. Debt collection has picked up, as has litigation. During 01 for the first time since 01 we saw lulls in the activity levels of the firms we advise which were principally evident over the summer months. Firms are busy now with the usual pre-Christmas rush across commercial, property 28 the Parchment

and litigation. However, 0 0 may well be the first year that most firms see their fee income as static or slightly back since the recovery took hold. Irish law firms have had a good run over the last five years and minor adjustments in activity levels as we see currently, will not necessitate the same dramatic business adjustments that happened between 008 to 010.

How do we Approach the New Cycle? The fundamentals still apply we need to sell our professional time and expertise at a profit. e also need to control the controllables and ignore the noise. The past five years have seen a significant investment in IT within the sector, without necessarily realising all of the potential benefits. It is time to see those benefits through. e need to think about our core business, what markets we want to be in, what is profitable and what is not. If there is a downturn in the economy coming, we also need to look at getting paid for what we do. Heading into the recession in 00 008, many Irish law firms had far too much money out in either work in progress, outlays, or in unpaid fees to clients whose financial situation deteriorated very uickly. Everyone vowed not to let that happen again. While the same downturn is unlikely to happen, it is time to improve billing and collection of fees.

What Can we Affect? The last five years have seen price rises across most practice areas and we are possibly entering a period where we have less scope for dictating price changes. e can affect efficiency and there is significant room for improvement here. We also need to look at the work streams we have and decide what to concentrate on, what to keep and what to drop or


Winter 2019 dsba.ie David Rowe is the managing director of Outsource, business advisers to Irish law firms. Outsource specialises in strategic and financial advice, succession planning and merging Irish law firms

scale back. We should keep areas that are core, profitable, growth areas have positive and regular cash ow and are low maintenance. Irish law firms are not good at dropping work but we need to drop areas that are low margin, have uncertain or sporadic volumes, re uire significant funding, have high staff commitments, or where the client is vulnerable or high maintenance. Overheads will inevitably come under scrutiny. or most Irish law firms salary costs make up two thirds of their overheads (including a notional salary for owners). Our view is that salaries in some sectors have become unsustainable in the event of any deterioration in market conditions. Expectations are high and it may be some time for the revised economic conditions to feed through to dampen and lessen salary expectations. or the moment our advice to law firms is that salary increases have to be performance based and not on an even percentage across the board. Bonuses must also be targeted and should be linked to cash ow. e are currently in a full employment market, it is also a good time to correct imbalances in staff mix where we have the wrong level of person or an unhappy staff member, alternative opportunities abound.

Practice Funding Irish law firms have paid down a significant amount of debt over the past five years. t the same time the partners’ investment in their own business (their capital accounts) have grown. e now have an average ratio of 3:1 between the partner funding and outside debt funding. Situations where it is safe to take on more debt include the funding of purchases of practice, funding the exit of an existing partner, funding non-speculative outlays, funding practising

Practice Management

certificates or II insurance, and funding partner tax for the current year only.

The Succession Stakes inally, 01 has been our most active year in 1 years for buying, selling or merging Irish law firms. Prices obtained for the sale of practices are low, but have improved. Sellers have gone through a number of improved years in their practices and in a lot of cases pension funds have improved or property portfolios have come right. There is an active market in most parts of the country for good firms. We also see a much increased appetite amongst assistant solicitors and associates in ambition to become partners. Improved market conditions, reduced level of debt and more exible thinking on the part of existing owners have all contributed to this.

Conclusion It looks as if we are entering a different cycle. The extent of any adjustment is unknown but at the moment there is definite evidence that the five or six years of continual improvement are stalling. The change will lead to both increased opportunities and increased challenges. It is relatively straightforward to manage your business in a period of gradual improvement our message to Irish law firms as we head into 0 0 is that it is time to take stock of what you do, how well it works, can you improve it. We are entering a period when having your finger on the pulse is required after having been optional but best practice for the past number of years. The extent of any adjustment coming is outside our control. We must control the controllables. P

01 or 0 0 may well be the first year that most firms see their fee income as static or slightly back since the recovery took hold

the Parchment 29


Protection of Principal Private Residences – Does the House Always Win? The Personal Insolvency Act 2012 was enacted with the aim of throwing a lifeline to debtors, many of whom may be in arrears on mortgage loans secured against their principal private residences. Jason Harte assesses where the courts stand in the protection of the principal private residence

T

he recent case of Tanager v Ronan Ryan and Pamela Flood illustrates how the objectives and policy behind the 2012 Act are profoundly respected by the courts today. To that end, it seems that the courts are closely following the policy direction of the Oireachtas which has sought to facilitate the debtor’s right of access to the personal insolvency regime, in many of its recent enactments. Initially amid many calls for the reform of the personal insolvency regime in Ireland, the 2012 ct offered a beacon of hope to debtors during the recession. It has the underlying objective of achieving an orderly debt solution, especially for secured debt, in the interest of the common good. Those debtors who are able to meet the criteria set out are afforded a protective certificate to facilitate them making a personal insolvency arrangement. The 2012 Act has been amended in the years following its enactment to include for example, a right of appeal to the Circuit Court on a personal insolvency arrangement that had been vetoed by a creditor.

30 the Parchment

Background In the Ronan Ryan case, the creditor Tanager had claimed that a protective certificate obtained by Mr Ryan should be set aside. Tanager’s application was made on the grounds that Mr Ryan did not disclose the existence of an order for possession over his family’s principal private residence when applying for the certificate. Tanager also stressed the consent nature of the order for possession and claimed that Mr Ryan should not be allowed to “go behind” this consent. However, Mr Justice Simons ultimately refused Tanager’s application and upheld the protective certificate.

Disproportionate Mr Justice Simons found that it was “unsatisfactory” that Mr Ryan had not disclosed the existence of the order for possession to the Circuit Court at the time of his seeking that protective certificate. However, he deemed it not to be a materia non disclosure’’ and noted that Mr Ryan would have met the eligibility criteria set down under section 91 of the 2012 Act. He deemed the refusal of


Winter 2019 dsba.ie Jason Harte is a partner and head of debt recovery at Mason Hayes and Curran

the protection of a protective certificate to be disproportionate to the gravity of that nondisclosure. He also pointed out that permitting Tanager’s application in those circumstances, would be inconsistent with the objectives of the 01 ct (as amended).

Order for Possession nder section 6(1)(d) of the 01 ct, a creditor is not entitled to execute or enforce a judgment or order against the debtor. One of the arguments put forward by Tanager rested on the fact Mr Ryan had consented to an order for possession. Tanager claimed that the application for a protective certificate was used to ‘derail and undermine the e a of the order. However, Mr Justice Simons took the stance that the aim of the legislation is to provide rational and orderly debt solutions in the interest of the common good. He recognised that in cases like this one, that would mean precluding a creditor who has the benefit of a court order, or even a consent order, from enforcing it.

Debt

Public Interest Mr Justice Simons found that the 01 ct (as amended) is based on a public interest policy which aims to provide for debt resolution in the interests of the common good. This seems to be particularly the case where there are, what Mr Justice described as, “innocent third parties” i.e. Mr Ryan’s children, involved. He also noted the position of other creditors who might fare better in a personal insolvency arrangement – as proposed by Mr Ryan, rather than a possible bankruptcy.

Conclusion The debtor’s right to avail of rational and orderly debt solutions offered by the Irish personal insolvency regime is at the heart of both the 2012 Act and recent amending legislation. This can also be seen in legislation such as the 2013 and 2019 Land and Conveyancing Law Reform Acts. These rights and the interest of the common good seem to be the driving force behind the judgment of Mr Justice Simons in the Ronan Ryan case. However, while reform of our personal insolvency regime was required, it is possibly the case that the balance may soon be tipped too far against the interests of the creditor. P

To that end, it seems that the Courts are closely following the policy direction of the Oireachtas

the Parchment 31


Kevin O’Higgins is a former President of the Law Society of Ireland and the DSBA and principal of Kevin O’Higgins Solicitors, Blackrock

Insurance

Professional Indemnity Update How Was it for You? With the PII season now thankfully behind us, Kevin O’Higgins took soundings from colleagues as to how they had fared this year

In general the feedback from colleagues is that many have experienced significant increases

32 the Parchment

M

ost we spoke to reported increases from 10 (very few), a reasonable percentage of colleagues who came to me from 1 - 4 but a minority, significant numbers -3 , 0 80 in many cases. frightening number from 100 to 00 with one at 300 . The data gathered by Richard Grogan is compelling. None of the figures include anyone with a claims history. The turnover figures in some cases had gone down and none relate to e uivalent to gross income increases. nother colleague and last year’s DSB president Greg Ryan recounts his own experience. His current insurer had left the market so he had to hunt down a new insurer. “My premium this year has doubled. In addition, O’Leary is insisting that I take out a cyber crime policy which will cost an additional €1,800 per annum. It’s a tough two month spell, Revenue, II and Law Society practising certs, so this is a very unwelcome surprise”. “In relation to the cyber crime policy, I’ve always been of the view that it’s unnecessary, another cottage industry that the insurers are trying to scare us into. I wrote to John lliott asking him to confirm that negligence in dealing with the client account (not fraud) should be covered under our II policy, in the same way as a negligently drafted conveyance or statement of claim. I’m still awaiting a reply. The broker agreed with my interpretation.”

“Incidentally the stock sales email for their cyber crime policy from O’Learys which issues every couple of months, referred to new EU regulations coming in about data. Given I’m the Law Society representative to the IT Law Committee of CCB , (the association of the 8 member states bar associations and law societies), and I hadn’t heard of these new regulations, I asked him to urgently clarify what these were. His reply: “The regu ations are in or e sin e a so our tem ate robab needs u dating to be air thats D .” The email in question that I was replying to was sent on 1st July 01 , so you’ll understand why I’m a little cynical and sceptical.” “O’Leary’s has been promoting a cyber crime policy around for about three years now. I find it very coincidental that the new insurers should now be insisting that I take out another of O’Leary’s products for their peace of mind. Has anyone else had this foisted upon them?” nother colleague, Dylan Mc uley, had a similar chastening experience. “I received a uote from CN (my current insurer) with a near 100 increase. No claims or major changes in my practice to justify this.” “Brokerage fees” also up from 300 to 3 , an increase of more than 300 . Richard Grogan says.“I believe some immediate urgent action is needed. There are a lot of colleagues who have had serious unjustifiable hits.” He believed a more proactive response is required from the Law Society and sets out his mission list. Colleagues have told me that uotes were held back in some cases until confirmation of cyber security policies either in place or uote accepted for same. The excuses for increased premiums included everything from Brexit to general losses and in two cases Grenfell Towers. In general the feedback from colleagues is that many have experienced significant increases. ccording to Richard Grogan: “I have had colleagues on at the very end of their tether and others totally stressed. I have had colleagues sick with worry and I mean physically sick. I have had two colleagues crying on the phone to me.” In a letter to the profession from Barry McCarthy, Chair of the Law Society II committee he said that the Law Society was not aware of the practice of coupling a cyber policy with the II proposal as a pre re uisite. P


Winter 2019 dsba.ie

Tribute

Paul Robinson - Obituary

P

aul Robinson who died unexpectedly on th May 01 , did not live just one lifetime in his short lifespan of 46 years, he lived many. In spite of his sudden and shocking departure remarkably, his funeral at the Church of St Th r se, Mount Merrion on the June bank holiday Monday morning was a joyful celebration of a life lived to the full. aul grew up in Buncrana, Co Donegal in a loving and supportive home which was the bedrock for his development and success. After secondary school aul went to niversity College Galway (now N IG) and seemingly unfazed by either the academic or the social challenges of CG, he threw himself into college life with great enthusiasm and application, winning lifelong friends with his gregarious and funloving personality. hilst in CG aul discovered what would become a lifelong interest in scuba-diving and was heavily involved in the CG Diving Club and the Students’ nion. He also managed to s uee e in a few summers in the Hamptons, charming his way into becoming a swim coach and ultimately a job with a S investment bank. As his life unfolded Paul created great opportunities for himself with his application to work, securing a coveted apprenticeship (as it was then called) in rthur Cox in the late 1 0s and ualifying as a solicitor in 001. e all watched on, delighted for him but not surprised by his success which seemed inevitable. But a constant theme in aul’s life was, that no matter how busy life got, he always found time for his wide circle of friends – and indeed he continued to expand that circle of friends throughout his life, whilst he pursued not only his own but his family’s enthusiasms. These included his fre uent Ninja’ diving trips to the west of Ireland which later became annual family get-togethers as he and his college brethren all became more settled’. Corporate life in Arthur Cox beckoned post ualification and he worked his way uickly to partnership. He had an eye for a well cut suit and his close friends at his funeral service honoured him by wearing one of his trademark Herm s ties, although thankfully no-one attempted to carry off the infamous white collar blue shirt ensemble from the early days of his apprenticeship. Throughout his lifetime Paul had a remarkable ability to connect with people and enjoyed the company of people from all walks of life. He served on the board of Temple Bar Gallery Studios for a number of years with an engaging interest in contemporary art and artists, whilst remaining a little deluded about his own artistic abilities. He served on the Business Law Committee of the Law Society and also managed to find the time to get involved in

a number of community initiatives including coaching youth football and rugby with his sons’ teams. At Arthur Cox Paul was not just a colleague but a friend and the depth of sadness in Earlsfort Terrace at his sudden passing was markedly on display at his funeral service from the firm where his personality and ability were given full freedom to shine. He was highly respected by both colleagues and clients alike and his family are extremely grateful for the immense support and wonderful tributes received from the legal and business communities since his untimely passing. They are particularly grateful to Paul’s great friends from the legal profession – lan dams, Jonathan ynne and Geoff Moore – who upon the news of his demise swiftly travelled to bring Paul home from Finland. hile there may have been a aul Robinson Mark I, II, III and I , the happiest version was the Mark – the family man content in his back garden, the week’s work done with his adored wife Ita (O’Sullivan), his beloved children ierce, Rhys and lannah and his dog Kobi. He was always at his happiest at home with his family where friends of aul and Ita’s were always met with the warmest welcome from the most generous and hospitable of hosts. Those who were lucky enough to have known him on his too brief but meteoric and jam-packed journey through life will each have their own favourite Paul Robinson story – whether it was his nickname for them, an escapade in college, a night out, his new pursuits or just his way of telling his latest bit of news or giving advice – life was never boring around aul Robinson. Gone but certainly never forgotten. Paul was a great colleague and friend, not just to those in rthur Cox but across the legal profession and he will be sorely missed by all who knew him or crossed his path. hile we may not understand why he was taken so soon, there is some comfort in one of aul’s favourite verses which his family chose for his memorial: hether or not it is ear to ou no doubt the universe is unfolding as it should e heer u stri e to be ha . Desiderata are e

au .

bheidh a eithéid ar s ann.

Throughout his lifetime, Paul had a remarkable ability to connect with people and enjoyed the company of people from all walks of life

P

the Parchment 33


Commercial Tenancies – The Right to a New Tenancy The right to a new tenancy can arise in a number of different ways in the commercial context. Jackie Buckley and Matthew Austin go back to first principles and review a tenant’s right to a new tenancy

C

ommercial tenants often occupy their premises under vague and uncertain terms. The situation often arises that neither the landlord nor the tenant are sure of the terms of the arrangement, either because terms were never reduced to writing or the initial tenancy agreement has long since expired and the occupation has continued beyond what was originally envisaged. ually, tenants fre uently occupy commercial premises under terms that are heavily negotiated and recorded in a lengthy written lease. All of these scenarios, and many others, are subject to the provisions of the Landlord and Tenant ( mendment) ct, 1 80 (as amended) (“the ct”) which regulates the landlord and tenant relationship by conferring on the tenant a number of statutory “reliefs”. These reliefs are designed to protect the position of tenants who have built up a business in a certain location and for whom it would be unjust to have to move that business, without relief. hilst the ct addresses a number of different issues, the focus of this article is on the right to a new tenancy conferred by section 16 of the Act.

What is a Tenement? hilst the ct re uires a tenant to pass a number of different eligibility tests which vary depending on the circumstances giving rise to the claim for relief, every tenant seeking to claim the right to a new tenancy must prove that the premises occupied is a “tenement” as that term is defined within Section of the ct. n essential part of proving that a premises is a tenement is that at least part of it is covered by buildings. The term “building” in this context has been broadly interpreted by the courts, to even include the likes of 34 the Parchment

concrete storage tanks sunk in the ground. Where the premises is only partly covered by buildings, the portion of the land not covered by buildings must be “subsidiary to and ancillary to the buildings”. acant plots of land and agricultural land are excluded from the definition of tenement.

Business Equity Section 13 provides for the business e uity which entitles commercial tenants in certain circumstances, to a new long lease at the end of their existing five year continuous occupation of the premises. s the name suggests, it is also essential that the premises be occupied wholly or partly as a business. The term “business” is defined broadly by section 3 of the ct and includes “any trade, profession or business, whether or not it is carried on for gain or reward, and any activity for providing cultural, charitable, educational, social or sporting services ”

Long Possession Equity Section 13 of the ct also provides for the long possession e uity if the premises has been continuously occupied by the tenant, including predecessors in title, for a period of 0 years or more. The long possession e uity is not limited to business premises but arises less fre uently in practice than the business e uity.

Improvements Equity Section 13 of the ct also provides for the improvements e uity. The test for establishing if the improvements e uity arises in a tenant’s favour is less straightforward than for the other two e uities. ssentially, it involves the tenant


Winter 2019 dsba.ie Jackie Buckley is head of property and private clients at Hayes Solicitors. Mathew Austin is a partner in the commercial and business team at Hayes Solicitors

Landlord and Tenant

establishing that he or she is entitled to compensation for improvements made to the premises and the value of those improvements is 0 or more of the letting value of the premises at the time that the tenant gives notice of its intention to claim the relief.

What are the Tenant’s Entitlements? Where the tenant can establish one or more of the three e uities described above, the tenant is entitled to claim a new tenancy beginning from the end of the previous tenancy. It is up to the landlord and tenant to agree the terms of the new tenancy but if they cannot be agreed, then the tenant has an entitlement to apply to court to recognise and enforce the entitlement and to fix the terms of the new tenancy. Surprisingly, the business e uity gives rise to an entitlement to a new 0 year tenancy, or such lesser period of time as the tenant may nominate, not less than five years. The long possession and improvement e uities give rise to an entitlement to a new 3 -year tenancy, or such lesser period of time as the tenant may nominate. The court must set the rent for the new tenancy and in basic terms, that rent will be market rent. The court will need to be presented with expert evidence to determine the market rent for the premises. hilst the court cannot provide for rent review clauses, the ct entitles both the landlord and the tenant to apply to the court for a review of the rent at five-year intervals.

Contracting out of the Right to the New Tenancy By virtue of amendments first introduced in 1 4, and subse uently revised, the ct does allow the landlord and commercial tenant to enter into contractual arrangements which effectively rule out the applicability of the various reliefs described above. This is achieved by means of a renunciation of rights by the commercial tenant where the premises is a business premises, a written renunciation has been executed by the tenant and the tenant has received independent legal advice in relation to the renunciation. It is no longer the case that this needs to be done before the tenancy commences. There has been case law recently where tenants have attempted to claim that the written renunciation which they executed was invalid due to poor drafting and inconsistencies and errors in the document. The courts have recently upheld the validity of such renunciations where there is no ambiguity in their terms.

Other Restrictions on the Right to a New Tenancy Section 1 of the ct expressly provides for certain situations wherein a tenant will lose the entitlement to a new tenancy. • The tenancy has been terminated for non-payment of rent. • The tenancy has been terminated for breach of covenant by the tenant. • The tenant has terminated the tenancy. • The landlord has given notice to uit to the tenant for good and sufficient reason. • The tenancy terminated, other than by notice to uit, and the landlord refused to renew the tenancy for good and sufficient reason or would have had

good and sufficient reason not to renew if the re uest to renew had been made.

Practical Considerations One of the key considerations at the beginning of any commercial letting transaction is whether or not the landlord will insist on a tenant giving up their statutory rights by executing a written renunciation. From a tenant’s perspective, there is a huge benefit in retaining these rights. It gives the tenant the security of knowing that he or she can continue to run the business from the same location whilst not forcing them to do so. Many tenants do not understand the reluctance on the part of landlords to allow the tenant to occupy without the renunciation, as it is effectively a guaranteed stream of income for a landlord. However, from a landlord’s perspective, they also need to consider the potential opportunities from the property in the future, some of which may not be apparent today. Landlords may be mindful of the fact that there is potential to redevelop the property at a point in time and if this is their intention, it is imperative that they have the right to ac uire the property back from their tenants without having to deal with the expense of buying out the tenant’s rights. It is also the reality that most funders will insist on the tenant signing a renunciation, if their consent is re uired for the letting in the first instance.

Conclusion The right to a new tenancy can arise in a number of different ways in the commercial context. The most fre uent is on foot of five years continuous occupation as a business premises, even if the written agreement has long since expired. The introduction of the business e uity gave rise to the introduction of the four-year, nine-month lease as a work around to the operation of the legislation. However, the reliefs provided by the legislation still operate in tenants’ favour in many circumstances and should be borne in mind by commercial landlords and tenants alike. P

It is up to the landlord and tenant to agree the terms of the new tenancy but if they cannot be agreed, then the tenant has an entitlement to apply to court to recognise and enforce the entitlement and to fix the terms of the new tenancy

the Parchment 35


Dwelling House Relief Brian Broderick gives a helpful overview of this well-known tax relief mechanism and provides an update on the Finance Act 2019

C

apital c uisitions Tax (C T) relief on benefits of dwelling houses has been in place in some form or other since Section 117 of the Finance Act 1991 introduced a relief known colloquially at the time as brother/ sister relief. In general terms this provided siblings of a deceased disponer with relief from C T if they were on the date of death of the deceased; they were living in the house in uestion with the disponer for five years when they took the house and they were not beneficially entitled in possession to any other house. The relief was available on inheritances only. Initially relief was applied by reducing the value subject to C T by the lesser of half of the value of the house, or IR 0,000. The relief continued in this form with some tweaks to the quantum of relief up to 3 December 1 when other relatives (except for a child or a minor child of a deceased child) could avail of C T relief on dwelling houses subject to similar conditions as those set out above. Conceptually, the group (a) threshold amount is often linked to the value of an average family home. The fact that a child and a minor child of a deceased child (group (a) beneficiaries) were excluded from the relief is indicative of this historic link between the level of the group (a) threshold and the family home.

Extension of Relief Section 1 1 of inance ct 000 opened the relief up to children (and non-relatives), provided for a full C T exemption for the first time and also allowed relief on gifts as opposed to inheritances only. The fact that children could qualify for the relief, and gifts could be made, resulted in a steady increase in tax planning to utilise dwelling house relief over time. Finance Act 2007 introduced some restrictions on gifts of dwelling houses but it was still possible to tax plan to reduce C T using dwelling houses and there was 36 the Parchment

the potential for wealthy parents to purchase valuable houses for children that could pass as gifts with little tax.

Restriction of Relief The perceived abuse of dwelling house relief was firmly dealt with in Finance Act 2016 which in some ways, went full circle by restricting dwelling house relief to inheritances only and requiring that the disponer lives in the dwelling house in question as a main residence on the date of death. Gifts to dependent relatives still qualify for dwelling house relief.

Interests in Other Dwellings key aspect of C T relief on dwelling houses since 1 1 has been the re uirement that a beneficiary cannot be beneficially entitled to any other dwelling house on the date of the gift or inheritance. Following a 010 unreported Circuit Court case (Knapp v Revenue ommissioners A the Revenue view was that if a beneficiary took a second dwelling from the residue of an estate that this would preclude the relief on an inheritance.

Deane v Revenue taxpayer that took two properties from an estate made an appeal to the Tax ppeals Commission (T C) claiming that there was no beneficial entitlement to any asset in an estate on the date of the inheritance (the date of death), and the ppeal Commissioner found in favour of the taxpayer (10T CD 01 ). This meant that dwelling house relief was available where a second dwelling house was taken from an estate. case was stated to the High Court and the Commissioner’s decision was upheld, the main point being that the beneficiary did not become beneficially entitled to the properties until the net estate had been ascertained (and not on the date of the inheritance).


Winter 2019 dsba.ie Brian Broderick is a tax practitioner at O’Hanlon Tax Ltd and member of the DSBA Probate and Taxation Committee

Finance Bill 2019 Finance Bill 2019 proposes amendments to counteract the Deane case. The legislation will ensure that where more than one dwelling is inherited by a beneficiary (e.g. a family home and a holiday home) from the same disponer, relief will not be available. The bill provides that if a beneficiary has a beneficial interest in, or beneficial entitlement to, a second dwelling (e.g. a holiday home) at the date of the inheritance, or at the valuation date of the family home benefit, then dwelling house relief will not be available. If the beneficiary inherits a family home and a second dwelling (e.g. a holiday home) and the valuation date for the second dwelling arises after the valuation date for the family home, then a claw back of any dwelling house relief claimed on the family home would arise. It is welcome that Finance Bill 2019 also deals with a concern in relation to the operation of the dwelling house relief legislation in cases where a dwelling house is passing through an estate. The Finance Act 016 legislation implies that a taxpayer is re uired to have a beneficial interest or beneficial entitlement in the family home on the date of the inheritance. The bill proposes to remove this problematic reference to the beneficiary having a beneficial entitlement or beneficial interest in the family home on the date of the inheritance.

Conclusion Once the Finance Act 2019 is passed, it will be clear that a beneficiary will only be entitled to dwelling house relief in situations where a single dwelling house is taken from an estate by a beneficiary. The relief will continue to be restricted to inheritances except in cases where a gift is provided to a dependent relative.

At the time of writing, the legislation has passed through the Dáil so changes to the proposed legislation are unlikely. There are some nuances to the relief which are outside the scope of this article but the expectation is that the conditions of dwelling house relief from the date of signing of Finance Act 2019 will be as follows: • The dwelling house must be occupied by the disponer as his only or main residence at the date of death (except where it passes to a dependent relative) • The dwelling house must be the only dwelling house that the beneficiary is beneficially entitled to on the date of the inheritance (or on the valuation date if later) • No further dwelling house is inherited from the same disponer with a later valuation date • The beneficiary must have occupied the house as his main residence for the three-year period prior to the disponer’s death (if the dwelling is replaced during this three-year period, the beneficiary must have occupied the original dwelling and the replacement property for at least three out of the four years up to the date of the inheritance) • The beneficiary must retain ownership of the property and continue to occupy it as his only or main residence for six years after the date of the inheritance, unless the beneficiary is over the age of 6 years at the date of the inheritance. The evolution of dwelling house relief has seen it extended to gifts but largely restricted again to inheritances in inance ct 016 – and the impact of the Deane case which allowed for more than one dwelling to pass through an estate will be circumvented by legislation changes. hile tax planning opportunities have been curtailed, it continues to be advisable to consider whether there is scope for the application of the relief when inheritance planning, given the value of potential C T savings. P

Taxation

It is welcome that Finance Bill 2019 also deals with a concern in relation to the operation of the dwelling house relief legislation in cases where a dwelling house is passing through an estate

the Parchment 37


Book Reviews

Financial Services Law in Ireland: Authorisation, Supervision, Compliance, Enforcement Finbarr Murphy, Round Hall (2018) This book is an excellent analysis of the banking, credit, insurance, pensions and investment industries in Ireland, their regulatory regimes and in particular the tools and mechanisms that are available to both Irish and EU regulators. The environment that the Irish financial centre works in is an international one. More and more, financial regulations need to cross territories and jurisdictions because, in this high-tech era, money does not recognise borders. The author recognises that a lot of financial regulation in Ireland has come from the and this book documents how European regulation has developed and evolved over time. The author describes the effects thatthe financial crash and banking scandals had on the Irish financial landscape a decade ago (with excellent writing on the impact of the Troika and the function of N M ). But perhaps more interestingly, he projects his view into the future and engagingly discusses Brexit and strives to predict its possible outcomes in terms of the Irish financial services sector. The title of “ inancial Services Law in Ireland: Authorisation, Supervision, Compliance, Enforcement” does not feature an “and” between the “Compliance, nforcement”, however I have found that various online catalogues of retailers, libraries (and even the book’s publishers) tend to insert the “and”. The book is for sale at a whopping 3 8 in one of Dublin’s larger bookshops. Even though it is printed on cigarette-paper thin sheets, it is uite the door-stopper of a tome. Coming in at chapters and over 1,800 pages, it is uite daunting to pick up and merely browse ( or review). So, where to begin nderstandably, I found that the index gave a straightforward

outline of the book’s themes. I found that the foreword and the preface, with their insights into the development of the book’s drafting, also gave good guidance on how to approach the book. The book is set out into four parts with in-depth analysis of the legislation governing financial services: Part I, acting as an introduction, gives the context for regulation and rules for each sector of financial services and explains the key participants in financial regulation at home and abroad. The structure and the wide-range of authorisation, supervisory and regulatory powers of the Central Bank, together with the oversight roles of the Courts and other agencies, are examined. There is a very useful chapter on money laundering and terrorist financing rules, with detailed attention given to the Solicitors AML Regulations and client monies. Part II explores the supervision and regulation of payment systems and credit institutions, including that of building societies, trustee savings banks, mortgage providers and credit unions (overseen by the Central Bank, the uropean Banking Authority, and the European Central Bank).The new system of CB supervisory responsibility for the major Irish banks is explained. There is also a thorough examination of consumer protection in finance services. Part III concentrates on regulated markets (overseen by the Central Bank and by the uropean Securities and Markets uthority). It examines the Mi ID I and Mi ID II regime, the different forms of domestic investment vehicles and EU regulation in the field of investment funds, specifically the undertakings for the collective investment in transferable securities ( CITS) regime and

the Alternative Investment Fund Managers Directive. Part IV is dedicated to an analysis of insurance and occupational pensions (overseen by the by the Central Bank, the Pensions Authority and the European Insurance and Occupational Pensions uthority). The knowledge and experience of the author shine through this book, which is very readable. Its sheer range and extensiveness (the scope of which I am perhaps unable to convey in this review) makes the book indisputably interesting and useful as a practical reference to a vast array of legal practitioners, professional advisers, financial services functionaries, compliance officers, regulators and academics. Paul Ryan is the Chairperson of the DSBA Commercial Law Committee

www.dsba.ie See our regularly updated website which publishes useful information for members on erning amongst other things ro essiona and so ia in ormation.

38 the Parchment


Winter 2019 dsba.ie

Book Reviews

Owner’s Management Company Law and Best Practice Clarus Press

This book covers the evolution of owners’ management companies with the considerable increase in construction of apartment developments in Ireland in the last thirty years. It considers: • the structure of the OMC; • what an OMC does; • how service charges are calculated and allocated, • how OMCs should deal with service charge debt; • membership and the obligations and rights that it brings; • the Building Investment Fund; • Companies Acts obligations, insurance, and property law. • What to do if the land on which the development is built is owned by a company that’s been struck off – it’s all in this book. The book will be very helpful to lawyers and property managers. Over 200,000 occupied apartments in Ireland which is

an increase of 8 over the number of apartments we had in 2002. This is still a relatively recent type of living and this book provides invaluable guidance in navigating both legal and practical issues arising for owners, owners’ management companies, and their advisers. The authorAisling Keenan is a graduate of the School of Business, Public Policy and Law at NUI Galway and the Founder and Managing Director of AK Property Services. ualified Managing gent, isling has twenty years of professional industry experience, a bachelor of commerce and LLB Bachelor of Laws from NUI Galway. The Consultant Editor Deirdre Ní hloinn B.L. is a former solicitor (Reddy Charleton) and recently graduated from Trinity College Dublin with a PhD on the law of liability of residential construction defects. Deirdre was called to the Bar in 2017 and acts for both apartment owners and OMCs in practice. This is an excellent publication in this

nascent area of legal practice. It is well researched with helpful foot notes throughout and a very useful addition to the office library of all property lawyers. Kevin O’Higgins is a former President of the Law o iet o re and and the D A. e rin i a o e in iggins o i itors a ro .

Parchment DSBA.IE

the

D U B L I N S O L I C I TO R S ’ B A R A S S O C I AT I O N M AG A Z I N E | A U T U M N 2 0 1 9 | I S S U E 8 1

COUNTING THE COSTS TEL: 01-7076023

TO D RTIS CONT CT: DONAL McDONALD New Regulations on Legal Costs

E: COPY@256MEDIA.IE EXAGGERATED AND FRAUDULENT CLAIMS PRIVACY IN THE WORKPLACE

the Parchment 39


Book Reviews

Constitutional Law: Text, Cases and Materials (Second Edition)

by Oran Doyle and Tom Hickey (published by Clarus Press) Constitutional Law above perhaps all other branches of law (with the possible and honourable exception of elements of the Law of roperty) depends on its political science hinterland for its context, meaning and application. This is particularly the case with Ireland. The Irish Constitutional order was ushered in by the coming into force of the Constitution of the Irish Free State in December 1 , itself a document born wholly out of a political settlement (the 1 1 nglo Irish Treaty). Its successor, Bunreacht Na h ireann, 1 3 emerged as a sort of end game after over a decade of political chicanery concerning the boundaries of the sovereignty of the new State a process which began at the 1 6 Imperial Conference with the efforts of T Cosgrave, Desmond it Gerald and Kevin O’Higgins leading to the Balfour Declaration and culminating with amon De alera’s signature political achievement 11 years later. The political perspective has not been lost either on Irish Constitutional scholars of the past. In his foreword to the second edition (1 6 ) of his seminal “ undamental Rights in the Irish law and Constitution”, Professor John Kelly notes that the edition is published “at a time pregnant with change”. More dramatically (and indeed graphically) the cover of Kelly’s (1 8 ) Supplement to the Irish Constitution (Second dition) depicts the Sir John Lavery painting “The Blessing of the Colours” symbolising the union of Church and State that many would say was confirmed by Bunreacht Na h ireann. From the outset the second edition of

onstitutiona a e t ases and ateria s is imbued by the rigour and vigour of a political science perspective. Something that the text is all the better for. It is laid out in three distinct parts. Part One describes the Irish constitutional order by reference to the evolution of the Irish constitutional system and explores the concept of rights in the Irish constitutional order before dealing with the formidable and at times indigestible topic of constitutional interpretation but doing so in a clear, accessible and readable way. The Referendum, arguably the entry point for most citizens into the constitutional forum, is the deserving subject of a novel and thoughtful chapter in its own right. art Two works through the heavy machinery of Constitutional law namely the institutions of State and how they operate within the tram lines of the separation of powers doctrine. inally, the last third of the book is devoted to the concept of rights. Whilst ostensibly a casebook, onstitutiona a e t ases and ateria s is not typical of the genre. Each chapter begins with the reader being introduced to key cases and materials. But rather than following the standard and if I may say rigid format of regurgitating case law, this book is blessed with a lively narrative style and it is at all times highly readable to which the co-authors deserve great credit. If I may leave the final word to Mr Justice O’Donnell of the Supreme Court who in launching this book stated that “this is a very substantial contribution in its own right towards our constitutional law scholarship

and immediately deserves its place on any constitutional law shelf space. The tone and voice of this book is particularly refreshing by maintaining at least the skeletal outline of a conventional case book it is able to adopt an interrogative approach, one that immediately engages the reader.” Gerry O’Connell is Chairperson of the DSBA Parchment Committee and is a State Solicitor in the hie tate o i itor s e. his re ie as written in a personal capacity

DSBA

and Annual DSBA Book Awards At the Banking Hall, Westin Hotel, Dublin Friday 28th February 2020 Black Tie | Tickets €120.00 each For tickets, contact Maura at the DSBA Office on 01- 6706089 or maura@dsba.ie 40 the Parchment


Winter 2019 dsba.ie Mark Woodcock is a partner and Joanne Cooney is an associate at Fieldfisher

Commercial Litigation

Liquidator’s Position Strengthened Mark Woodcock and Joanne Cooney review a recent High Court decision which strengthens the hand of a liquidator when it comes to their commercial judgment being called into question

T

he High Court recently considered an application by creditors for directions calling upon a liquidator to reconsider advice he had provided in a report to the ODCE and to carry out further and more forensic investigation into the circumstances which led to the liquidation of the company.

Background The disgruntled creditors had filed a petition to wind up Sutton Castle Developments Limited (the Company) for an unpaid award of damages they had obtained at arbitration. However, before the creditors could get to court, the company appointed Jim Butler of GBW Accountants as a liquidator at a creditors meeting. It was in those circumstances that the creditors applied pressure on the liquidator from the outset to investigate the directors and their management of the company. Ultimately, the li uidator filed a report with the ODC and sought relief from his obligation to restrict the directors. The creditors set out their allegations in relation to the behaviour of the directors in detailed correspondence with the ODCE. The ODCE had the benefit of both sets of submissions and decided to relieve the liquidator from his obligation to restrict the directors. The creditors embarked on a sustained campaign to have the liquidator reconsider his position and engage in further investigations into the company’s affairs and more particularly the director’s management. Ultimately the creditors were not satisfied with the detailed explanations provided and filed a motion for directions seeking various reliefs against the liquidator. The reliefs sought included a determination that the li uidator had not fulfilled his obligations as a liquidator. The motion was vigorously fought and numerous affidavits were exchanged between the parties.

of adbro es re and imited and had held that the courts should be reluctant to question the commercial judgment of the examiner (in that case) and followed the UK case of dennote imited which had held that: a ourt i on inter ere ith the a t o a i uidator i he has done something so utter unreasonab e and absurd that no reasonab e man ou d ha e done it .

Court’s Judgment In a very important judgment for all insolvency practitioners (be they li uidators or examiners) which effectively confirms that it is not the court’s function to second guess the commercial judgment of a liquidator in the performance of statutory duties. This decision will be of great assistance to liquidators when there is any challenge to decisions made in relation to the investigation of directors’ management of insolvent companies and indeed could reasonably apply to examiners considering competing bids for a business in preparing a scheme of arrangement. It is a timely endorsement of the commercial probity and professional independence of insolvency practitioners. P

It is not the court’s function to second guess the commercial judgment of a liquidator in the performance of statutory duties

Applicable Law The applicant creditors set out their allegations against the liquidator as well as the directors of the company for the benefit of the court. The liquidator set out his statutory obligations to the court but also relied on the relevant case law. The High Court had considered the commercial judgment of insolvency practitioners in the 2015 examinership the Parchment 41


The Future of the “Offer To Make Amends” in Defamation Actions A High Court jury in the case of Higgins v Irish Aviation uthority 014 38 has become the first to assess damages in a case where defamation was admitted and an apology given, under the “offer to make amends” procedure. Karyn Harty examines the issue and the impact it may have on defamation actions

W

hile it was intended to encourage parties to settle their disputes uickly and in a cost-effective manner, the potential for a jury assessment of damages continues to discourage defendants from utilising the procedure – but is reform on the way? On 14 November 01 , a High Court jury determined that a pilot, draig Higgins, was entitled to damages of 38 ,000 from the Irish viation uthority (“I ”) arising from defamatory emails it sent in 013. This re ected an initial assessment of 300,000 general damages and 130,000 in aggravated damages but included a 10 percent discount, in light of the offer to make amends under s. of the Defamation ct 00 (the “ 00 ct”). It is understood the I issued a final approved apology to Mr Higgins and a retraction only at the outset of the damages assessment hearing. The I had previously made an un ualified offer to make amends in May 01 . This offer was accepted by Mr Higgins. However, the parties were unable to agree the amount of damages or costs payable, and according to s. 3(1)(c) of the 00 ct, they then fell to be determined by “the court”.

The Jury’s Role in Determining Quantum of Damages In the Higgins case, the High Court was initially asked to determine whether the meaning of the term “court” in s. 3(1)(c) of the 00 ct re uired the uantum of damages to be assessed by a jury (rather than a judge). The court held that Mr Higgins was entitled to have the uantum of damages assessed by a jury 42 the Parchment

with appropriate instruction from a judge, and rejected the I ’s argument that the language of s. 3 of the 00 ct did not permit a jury trial. That decision was appealed by the I to the Court of ppeal which affirmed the decision of the High Court and specified that the right also applied where no proceedings had been instigated. The I subse uently appealed to the Supreme Court. (Higgins v Irish Aviation Authority; White v Sunday Newspapers Ltd 018 I SC . s the same issue was raised in both cases, the Supreme Court dealt with both appeals in the same judgment, dated 10 July 018). Ms Justice Dunne concluded that the phrase “the court” used in s. 3(1)(c), while not defined, meant a “jury” and noted that “the assessment of damages in a High Court defamation action is and always has been quintessentially a matter for a jury”. Interestingly, in the Supreme Court’s view, there was no basis for a difference of approach in a defamation action compromised by an admission of liability, leaving over damages for assessment by a jury, and a compromise of actual or potential proceedings by the acceptance of an “offer of amends”.

Counting Your Apples - What are the Potential Damages and Discount? The offer to make amends’ procedure may involve a jury assessment of both the starting point for damages and any discount to be applied which may not appeal to defendants looking for certainty and a uick resolution. or example, in Higgins the initial award (pre-discount) of 430,000 would, irrespective of the facts, be considered at the higher


Winter 2019 dsba.ie Karyn Harty is a partner at McCann Fitzgerald. She specialises in media law

end of the scale and the recent decision of the Court of ppeal in inse a enmare esour es ourt o A ea A further highlights the potential for hugely disproportionate jury awards – where the Court of ppeal substituted the highest ever defamation award of 10m in damages for 0,000. Despite this, one of the main benefits in availing of the offer to make amends’ procedure is the potential to receive a discount on the damages awarded. The level of discount will be in uenced by factors such as the timing, nature and sufficiency of the terms offered but there is little certainty: it may range from as little as 10 (in Higgins) to 40 or 0 (Christie e e ision et or s td ourt o A ea . Overall the discount to be applied will be in uenced by the defendant’s conduct and their efforts to suitably vindicate and compensate the plaintiff. Clearly, an early offer acknowledging the defamation, made in good faith and including a fulsome apology will attract a higher discount.

Potential Reform - is the Jury Here to Stay? In the Supreme Court judgment in Higgins, Ms Justice Dunne recognised that the offer to make amends’ procedure was aimed at facilitating early and speedy resolution of defamation proceedings but criticised the lack of clarity as to how it was intended to work in practice to achieve its objective. The Supreme Court further echoed practitioners’ calls for reform of the provisions, noting that “it would be very desirable that consideration is given to setting out very clearly the mechanism envisaged and how it would function in a range o di erent ir umstan es”. However, the court was clear that the core function of the jury in assessing damages could not be displaced without clear and express words from the legislature. Such reform has since occurred in the nited Kingdom where the right to a jury trial in defamation actions was abolished by section 11 of the Defamation ct 013. In terms of Irish reforms, last week the Department

Litigation

of Justice indicated its long-awaited review of the 00 ct is due to be published in early 0 0, with legislative proposals due to be tabled before the summer recess next year. Some of the stated aims include addressing the “chilling” effects of high unpredictable awards and legal costs on public interest media reporting, developing the use of alternative dispute resolution processes and solutions, and tackling the specific problems raised by online defamation. In this context, it is hoped the role of the jury – especially with regard to the assessment of damages – will be carefully scrutinised in light of the uncertainty created for defendants generally, and particularly those wishing to avail of the offer to make amends procedure. In this regard it is worth remembering that Circuit Court judges are routinely tasked with assessing damages in defamation actions without a jury. The intention to develop alternative means for resolving defamation claims will be welcomed by defendants, particularly in view of the shortcomings of the offer to make amends procedure.

In terms of Irish reforms last week the Department of Justice indicated its long-awaited review of the 2009 Act is due to be published in early 0 0, with legislative proposals due to be tabled before the summer recess next year

Comment Last month’s decision makes clear that, where parties cannot agree on the terms of an offer to make amends, juries may be asked to consider both the level of damages and any discount to be applied. It seems that to avail of a substantial discount, a defendant must act uickly to acknowledge the defamation and offer a fulsome and genuine apology or retraction. Yet how attractive is this procedure if defendants still bear the risk of an unpredictable jury assessment and have no guarantee of a significant discount In summary, jury assessments are here to stay – for now at least – which makes it difficult to predict the level of damages to be expected in any given defamation claim, including where an offer to make amends has been made. Stakeholders will therefore eagerly await the anticipated reform and clarifications signalled by the Department of Justice. P the Parchment 43


Employment/Litigation

Lorna Osborne is an associate solicitor in the corporate department at Eugene F Collins

The Central Register of Beneficial Ownership of Companies The Central Register of Beneficial Ownership of Companies and Industrial and rovident Societies (RBO) was officially launched in July 01 . Lorna Osborne gives an overview of what is involved Background

Where a beneficial owner does not exist or cannot be identified, the details of the senior managing officials of the relevant entity (i.e. its directors and C O) must be submitted to the RBO

In November 016 the uropean nion ( nti-Money Laundering: Beneficial Ownership of Corporate ntities) Regulations 016 (the “ 016 Regulations”) were published in Ireland. The 016 Regulations were the first step in the transposition of the uropean nion’s fourth nti-Money Laundering Directive (the “Directive”) and they re uired all Irish companies and other bodies corporate to obtain and hold ade uate, accurate and current information on their beneficial ownership in an internal beneficial ownership register. On March 01 , the uropean nion ( ntiMoney Laundering: Beneficial Ownership of Corporate ntities) Regulations 01 (the “ 01 Regulations”) were signed into law. The 01 Regulations revoked and restated the majority of the provisions of the earlier 016 Regulations while also establishing the Central Register of Beneficial Ownership of Companies and Industrial and rovident Societies (known as the “RBO”). ith effect from July 01 , the Companies Registration Office (CRO) has been appointed as the statutory body in Ireland responsible for the establishment and maintenance of the RBO.

Scope of the RBO The 01 Regulations re uire all relevant entities to submit information in respect of their beneficial owners to the RBO. It should be noted that although the 01 Regulations provide an exemption for companies listed on regulated markets, this exemption does not extend to Irish incorporated subsidiaries of listed companies. If a company incorporated in Ireland is a subsidiary of a listed company, the subsidiary company is still re uired to file details of its beneficial owners with the RBO.

Who is a “Beneficial Owner”? The 01 Regulations have taken the definition of “beneficial owner” directly from the directive. nder the directive a “beneficial owner” is defined as an individual(s) who ultimately owns or controls a relevant entity, through direct or indirect ownership of over of the shares or voting rights or ownership interest in that entity. Conse uently the following are indicators of beneficial ownership: ownership (directly or indirectly) of more than of a company’s shares controlling (directly or indirectly) more than of a company’s voting rights or 44 the Parchment

control via other means (for example, through a shareholders’ agreement, the exercise of dominant in uence or the power to appoint senior management). If a company is a subsidiary owned by another corporate entity, any natural person who holds or controls plus one share or has ownership interest of more than in the parent company, is a beneficial owner of the subsidiary. This is known as indirect beneficial ownership.

Access to the RBO Certain organisations such as an Garda S och na, the Revenue Commissioners, the Criminal ssets Bureau and the Department of Justice and uality will have unrestricted access to the information held on the RBO. Restricted access to the RBO will be made available to the general public and they will be able to access the following information in respect of the beneficial owner: name, month and year of birth, nationality, country of residence and the nature and extent of beneficial interest held or control exercised. The only difference between unrestricted access and restricted access is that persons with restricted access will not be able to view the full date of birth or residential address of the beneficial owner. In addition, those with unrestricted access will be re uired to pay an administrative fee of . 0 to view the beneficial ownership information.

Timelines to Note Relevant entities that were in existence before June 01 had until November 01 to deliver the information in respect of its beneficial owners to the RBO. relevant entity incorporated on or after June 01 will have five months from its date of incorporation to deliver the relevant information to the RBO. Changes in the beneficial ownership of a relevant entity must be notified to the RBO within 14 days of the change occurring.

What are the consequences for failure to comply? failure to comply with the 01 Regulations is a criminal offence and can result in the imposition on summary conviction, of a fine up to ,000 or, on conviction on indictment, a fine not exceeding 00,000. P


Winter 2019 dsba.ie Aideen Shanley is a solicitor in BHSM practising in the area of commercial litigation

Data Protection

Preparing for a Data Protection Audit Your organisation may find itself subject to a data protection audit by the Data rotection Commission (“D C”) in compliance with GD R and the Data rotection cts 1 88 – 018. ideen Shanley advises that it is important to remember that data protection compliance is not the same in every organisation and it may need to be adapted depending on the type of business that you operate

T

hese audits can be conducted at very short notice to the data controller or data processor and do not have to be carried out on foot of a complaint received by the D C. lease see below for five practical steps to take:

1. Review your Data Protection Policies and Procedures to Ensure they are up to Date and GDPR Compliant Make sure your policies are relevant to your organisation’s data processing activities and organisational structure to include policies on data subjects’ rights, privacy policies, employee handbook and a data retention policy.

2. Provide staff with Training and Awareness ll staff need to be trained on their data protection obligations and on the organisation’s policies. It is important to be able to show that an appropriate level of training has been provided by maintaining records such as sign-in sheets, records of online assessments and the circulation of relevant and upto-date literature to your staff.

3. Know your Data It is important to have an up-to-date data processing log to show the range of ways in which your organisation processes personal data. If you process personal data, you need to be clear on what data you process, why and on what basis. This is particularly important if you process “sensitive personal data” such as medical data, financial data and details of religious memberships. There are more stringent security and processing re uirements for sensitive data and it is essential that these are followed.

4. Be Ready Carry out an annual mock audit. This will involve reviewing your policies to make sure they are up to date and to ensure your organisation is capable of dealing with a breach within the -hour timeframe. ll potential security breaches need to be reviewed such as open files on desks, unlocked computers and electronic devices and notes left in open spaces with passwords and third-party information

displayed on them. During an audit the D C will re uire evidence that the appropriate security re uirements are in place and working properly. You need to check that there’s a good reporting system in place, so that organisations are aware that they must report any issues or problems to the Data rotection Officer or the person responsible for data protection within the organisation.

5. Is your Data Secure? During your mock audit, check that the security system is sufficient. s a data controller, you must prevent unauthorised access to personal data held by you and by data processors who work for you. Consider technologies like encryption and physical safeguards such as locked storage within the company. If you store data in the cloud, check that you have appropriate protections in place with your cloud service provider and what the remedies are in case the data is breached in any way. P the Parchment 45


Foreign Elements in Administrations Following on from a very informative and successful DSBA probate seminar in early October, Ăšna Burns of Stephenson Solicitors reminds us of how to deal with foreign elements in administrations

T

he foreign element in any administration can be wide and varied. It may be the domicile of the testator, the will itself which may have been executed by the testator in another country or in another language or both; or as is often the case, the principle assets are elsewhere and the matter has been probated in another jurisdiction but you must raise representation here in order to deal with the property. Each varying element raises its own peculiarity within the process of estate administration. Having established that a will is valid by reference to sections 78 and 102 of the Succession Act, 1965, the next requirement of any probate application is to ensure that the applicant is the person entitled to extract a grant here. Here domicile makes the difference Domicile is a matter of fact and should not be a guessing game or a moveable feast. Also as practitioners, it is not our decision, it is for us to be informed by our client. In circumstances where a person dies domiciled outside of the Republic of Ireland but leaving property in this jurisdiction, the international rules of law of lex situs and lex domicilii apply. This simply means that where a person of foreign domicile dies with immovable property only in this jurisdiction then the grant will be given to the person entitled under Irish law (lex situs).

46 the Parchment

Where a person of foreign domicile dies with moveable property only in this jurisdiction then the grant will be given according to the law of their country of domicile, wherever that may be (lex domicilii). Where a person of foreign domicile dies with both moveable and immovable property in this jurisdiction then the applicant is required to satisfy both requirements. probate officer’s order is necessary in order to limit a grant to either moveable or immovable assets, but it is possible and can be very helpful in certain situations.

Immovable/Real Property Only Lex situs applies and the applicant must show an entitlement to extract a grant under Irish law. If the applicant can also show an entitlement to extract a grant under the law of domicile, then a full grant can issue to that applicant. If the applicant is an executor named under a will, then this is not a problem as it is universally accepted that an executor’s authority stems from the will and they are the primary person entitled to extract the grant. If someone other than an executor is applying (including an attorney for the executor) for a full grant, then the applicant must in addition to showing their entitlement to extract a grant in Ireland under the oath


Winter 2019 dsba.ie Úna Burns is a partner in Stephenson Solicitors. She is a member of the DSBA’s Probate and Taxation Committee

in the usual fashion, also prove their entitlement in the country of domicile in one of two ways: • They can either exhibit a sealed and certified copy of the grant (and will, if applicable) from the country of domicile, or, • rovide an affidavit of law.

Moveable Property Only Lex Domicilii applies, and the applicant must show an entitlement under the law of domicile by lodging either: • sealed and certified copy of the grant (and will, if applicable) from the appropriate court in the country of domicile, or • here no grant has issued, an affidavit of law from a suitably ualified lawyer practising, or who has practised, in the jurisdiction in question. See below for re uirements of an affidavit of law together with precedents. If an applicant can also show, by way of oath, that they are also the person entitled to extract the grant under Irish law then a full grant can issue to the applicant.

Both Immovable and Moveable property in this Jurisdiction Where a person of foreign domicile dies leaving immovable and moveable property in this jurisdiction, then a full grant will be required and the laws of both lex situs and lex domicilii must be satisfied. This is done by: 1. Showing title under the oath to show entitlement in this jurisdiction, and . Lodging a sealed and certified copy of the grant (and will, if applicable) from the country of domicile, or 3. here no grant has issued, an affidavit of law from a suitably ualified lawyer practising, or who has practised law, in the jurisdiction in question. n affidavit of law must be sworn by an independent lawyer practising, or who has practised in the jurisdiction in uestion and must confirm their ualifications to make that affidavit. The affidavit must include the facts of the particular case and exhibit all relevant documents. It should also refer to and quote the relevant legislation in the particular jurisdiction and confirm if a grant has issued in the country of domicile. When the affidavit is re uired to show entitlement to extract a grant, it should state who is entitled to administer the deceased’s estate under the law of the country of domicile. If more than one person is entitled to administer the estate, it should state whether they are entitled to administer independently of each other, or if all must administer together.

Wills in a Foreign Language Proving a will in terms of a translation is provided for under Order Rule (10) of the Rules of the Superior Courts which states very simply that “Where a will is in any language other than the Irish or ng ish anguage the robate o er ma admit it to roo in terms o a trans ation thereo in the rish or ng ish anguage. To that end, it is first necessary to obtain an

order from the probate officer admitting the will to proof in terms of a translation. In addition to the above rules, the probate officer must be satisfied as to the accuracy of the translation and this is done by lodging the following proofs: 1. rounding A davit of the applicant or of the solicitor with carriage of the case setting out all of the facts of the estate, exhibiting all of the relevant documents and identifying the order being sought. 2. A davit of Law from a suitably ualified independent lawyer. Such an affidavit must: a. Set out the full facts of the case including the domicile at death of the deceased. b. Exhibit all relevant documents, for example: o Death certificate o Original will if it has not been proved in the country of domicile or o If the will is made in a notary’s office and the convention is for the notary to retain possession of the original in his or her office, state same and provide a copy of the will which must be sealed and certified by the notary in question. o If the will has been proved in the country of domicile, a sealed and certified copy of the will and grant of representation. o Translation of all documents by a legal translator. c. Quote the piece of legislation which determines the validity of the will. d. Quote the legislation which determines the entitlement of the person which is proposing to apply for the grant. e. Where the probate system in the country of domicile is different in approach to the Irish system in terms of proving the will and administration of an estate, giving a full account of how the administration of estates is dealt with and how the administrator obtains the legal authority to administer the estate. f Securing an apostille stamp where for example, the will has not been proved in the country of domicile. 3. A davit of Translator which must be sworn by the actual translator who translated the documents who in turn, must be an official translator of legal documents.

Probate

Where a person of foreign domicile dies with both moveable and immovable property in this jurisdiction then the applicant is required to satisfy both requirements

The affidavit of the translator must contain averments to the fact that he/she has prepared the translations in question and that they are true and accurate translations of the documents in question. The translator must also exhibit either the original will or a sealed and certified copy from the notary before which it was made or, if already proved in the country of domicile, a court sealed and certified copy of the will together with any other relevant documents relating to the estate and their translation. 3. Fees – currently for probate officer’s order and 0 per affidavit filed. P the Parchment 47


Ben Mannering is a solicitor with the State Claims Agency. His views in this article are personal and not to be taken as the view of the National Treasury Management Agency

EU/Privacy Law

ECHR and Surveillance With allegations of insurance fraud always a topical political issue, Ben Mannering reports that an insurer’s right to robustly defend and investigate cases which sometimes stipulate surveillance, was given a boost recently by an unlikely source, the uropean Court of Human Rights

An insurer was entitled to protect where reasonable, its pecuniary interests thus allowing interference in the rights of the applicant

48 the Parchment

I

n its decision in the case of ehmedo i Switzerland (1 331 11), the uropean Court unanimously declared an application inadmissible. The application concerned surveillance of the applicant (and perhaps somewhat significantly, his wife) in a public place by investigators for an insurer. The insurers instructed investigators to ascertain whether the applicant’s claim for compensation was justified. Relying on rticle 8 (right to respect for private and family life), the applicant submitted that by placing him and specifically, his wife under surveillance his rights had been breached. The ionjured parties were involved in a road traffic accident in October 001 sustaining physical injuries including inter a ia epilepsy in a claim totalling 1, ,3 3. The insurer hired a private investigator to establish the veracity of the injury pleaded and filmed the applicant over four days from places accessible to the public. The evidence appeared to contradict the pleadings. The applicant’s wife appeared in six photographs. ollowing an unsuccessful application to the domestic court, the ederal Supreme Court of Swit erland held that an infringement of personality rights arising from surveillance, could be justified by the fact that neither insurer nor its clients could be re uired to make payments in respect of claims which were unjustified. On application to the ECHR, the court noted that the insurers’ investigations had taken place in a public place and were confined to ascertaining the mobility issues of the applicant. An insurer was entitled to

protect where reasonable, its pecuniary interests thus allowing interference in the rights of the applicant. This had previously been confirmed in Verliere v Switzerland (41 3 8). urther, the manner in which the information had been gathered meant that it was not a systematic gathering of data. hilst welcome news, surveillance must be considered with trepidation. In contrast to the foregoing, a chamber judgment in VukotaBojic v Switzerland (61 38 10) resulted in a 6 1 majority where there was held to be a violation of said rticle 8, where secret surveillance was ordered by an insurer. It was held to have interfered with the applicant’s private life even though it was carried out in the public domain, as the data had been collected and stored in a systematic manner. nder Swiss law, the laws under which the surveillance took place were insufficiently precise, particularly failing to regulate how long surveillance could be conducted. n award for compensation was made in the sum of 8,000 in respect of nonpecuniary damage and 1 ,000 in respect of cost and expenses. further claim that it had breached her rticle 6 right to a fair trial failed as she had ample opportunity to challenge the evidence and she was given reasons at trial why it should be admitted.

A Word of Warning from the Irish Bench….. Contrast this award however, with a relatively recent reporting of a Circuit Court ruling concerning a minor of similar circumstances in May 018 in Ireland which led to an award of 0,000 to a plaintiff plus costs ( enton rish i e ). The plaintiff in that matter, was the child of an employee of IB who had taken out an income protection policy with Irish Life. The defendant had organised another party to carry out investigations into the employee’s movements and as a result, the child was photographed without parental consent. The plaintiff reported psychological trauma upon finding out about the activities of the investigator. Both parents’ actions were also struck out and were settled confidentially. This latter case was resolved pre GD R, which perhaps makes the landscape even more uncertain where insurers’ obligations are more onerous under the new data protection regime. P


MEMBERSHIP

DSBA – Our Benefits T he Dublin Solicitors’ Bar ssociation (“DSB ”) is the largest bar association in Ireland, having been established in 1935. It is a representational and not a regulatory organisation, existing to promote the welfare and interests of its members who are solicitors. The DSB aims to promote a vibrant and up-to-

DSBA Precedents – Precedent publications area available on topics including solicitors’ partnerships, residential tenancies, share purchase and sale agreements and family law and separation agreements. All these are in constant and daily use by practitioners.

date profession and collegiality amongst solicitors. The DSB offers the following benefits to members:

DSBA CPD Events – Preferential rates for members for top quality CPD events held all year round. The DSBA is committed to providing a series of conferences and seminars in the next 12 months to meet the ongoing educational and information needs of its members.

Parchment

DSBA Seminars – As popular as ever, the seminars organised by the Association continue to deal with practical topics. e are also holding many seminars of a more specialised nature where there may be a charge.

Parchment

DSBA .IE

the

ITORS DUBLI N SOLIC

ON THE CLOCK ent New Employm hibits zero Legislation pro ts hour contrac

– LIFE AFTER LAW AND JOURNALIST ITOR FORMER SOLIC MURPHY SARAH JANE E NEW PRACTIC DIRECTION FOR ASYLUM, IMMIGRATION HIP AND CITIZENS LIST OF THE HIGH COURT

CIATIO ’ BAR ASSO

N MAGA ZINE

the

| ISSUE 79 | SPRIN G 2019

Parchment COUN TING TH

the

DUBLI N SOLICI TORS’

BAR ASSOC IATION

Weighing up the Benefits and Co sts

MINISTER CHAR LIE FLANAGAN INTERVIEWED

RS’ BAR ASSO CIAT

ION MAG AZIN

E | AUTU MN

2019 | ISSU E 81

MAGAZ INE | SUMM ER 2019 | ISSUE 80

NEW PARENTAL LEAVE ENTITLEMENT S

5TH ANNUAL DS LAW BOOK AW BA ARDS

50 the Parchment

DUB LIN SOLI CITO

DSBA. IE

DSB A.IE

E COSTS

New Regu Legal Costlations on s

EXAGGERA FRAUDULE TED AND NT CLAIM S PRIVACY IN WORKPLA THE CE


Winter 2019 dsba.ie

Membership

DSBA Parchment Magazine – Our award winning uarterly maga ine, which, as has been the case for a number of years, is available only to paid-up members. DSBA Social Functions and Sports Events – Held throughout the year, these

functions in various guises give colleagues essential opportunities to interact with each other outside the working environment.

DSBA Submissions - Our committees and council work hard to represent solicitors and their interests – see recent submissions on Professional Practice, Conduct and Discipline Residential roperty Transactions) Regulations 01 , Legal Services Regulation Bill 011 amongst others. The Solicitors Confidential Helpline is available to confidentially assist every member of the profession nationwide with any problem whether personal or professional free of charge. The volunteers on the panel who provide the service are all solicitors of considerable experience, www.consultacolleague.ie.

DSBA Younger Members’ Committee represents the interests, both professionally and socially, of the younger and most recently ualified members of our profession, from newly ualified up to five years . The Younger Members’ Committee of the DSB organises low cost CPD events, lectures and other events for young solicitors.

DSBA Management Tools such as

- CORT – Computerised Objections and Requisitions on Title.

DSBA Website – www.dsba.ie see our

regularly updated website for information on all of the above. or renewal and new membership please complete the form below in full and return it together with a che ue bank draft postal order to the Secretary, DSB , 4 Dawson Street, Dublin , or call 01 6 0608 to pay by credit debit card.

GROUP MEMBERSHIP FEE 2020 One member 2nd to 5th members 6th to 10th members 11th to 0th members 1st to 0th members 1st to 100th members 101st to 1 0p members 151 plus members

€100 €95 each € 0 each €8 each € each € 0 each €6 each €60 each

✁ Name: Firm name: Firm address: Phone number: Fax number: DX number: Email address: Year admitted to the roll: Enclosed please find *cheque/bank draft/postal order for € for * new membership/renewal

the Parchment 51


Capacity Issues in Practice ine Hynes provides an update on the implementation of the ssisted Decision-Making (Capacity) ct 01 and recent developments in wardship

The Assisted Decision-Making (Capacity) Act 2015 The ssisted Decision-Making (Capacity) ct 01 (“the 01 ct”) was signed by the resident of Ireland on 30th December 01 . It is important to note however, that most sections of the 01 ct have not been commenced. Two ministerial orders dated 1 th October 016 commenced certain sections of the 01 ct. The most significant of those commenced, part of the 01 ct, establishing of the new role of the director of the Decision Support Service. The “guiding principles” sections and section 3, dealing with the functional approach to capacity, have not been commenced. The sections providing for the repeal of the legislation governing wardship and replacing it with applications for declarations of capacity, have likewise not been commenced. Once the 01 ct is commenced in full, all adult wards will be discharged from wardship and declarations will be made under the new legislation in respect of those persons. In the meantime, practitioners will be all too keenly aware that the issue of loss of mental capacity can result in significant legal issues, particularly where a person has not made an enduring power of attorney. In such circumstances, there may be no option but to apply in wardship for the appointment of a committee to deal with the person’s assets with the permission of the resident of the High Court, in whom jurisdiction in wardship is vested (note that the Circuit Court also has jurisdiction in wardship but in practice, it is rarely used). There can be a reluctance to utilise wardship procedures while awaiting the full implementation of the 01 ct, however, there is no certainty as to when it will fully commence (the most recent estimate is 0 1). In the interim, the plight of those who have lost the mental capacity to manage their affairs cannot be simply ignored. Indeed, the Ombudsman’s report on the operation of the Magdalene Restorative Justice Scheme ( 01 ) was highly critical of the delays in utilising wardship procedures while awaiting the implementation of the 01 ct. Some recipients of the awards (who had lost mental capacity) died without getting the benefit of their awards as there was a reluctance to utilise wardship. The Ombudsman found that it was mal-administration, as being the result of negligence and carelessness, improperly discriminatory and contrary to fair or sound 52 the Parchment

administration. pplications were then made in wardship for remaining recipients who were not able to manage their affairs.

Protective Jurisdiction Expanded In addition, many applications in wardship are now made to the resident of the High Court in order to safeguard a vulnerable person, as distinct from the majority of applications which were formerly made to ensure that the assets of a person who had lost mental capacity, could be dealt with. The case of re:D a ard o ourt 1 8 IR44 established that there is a jurisdiction to take into wardship a person who re uires protection but who is not entitled to any property re uiring such protection and management. Many of the cases which appear in the wardship list concern vulnerable persons with disabilities who are at immediate risk of abuse, including physical and sexual abuse. rotective orders can be obtained to ensure that the person is no longer exposed to such abuse. The wardship jurisdiction has also been utilised to obtain authority for medical treatment where the person is not able to consent to the treatment. In addition, the jurisdiction has been used to obtain orders for treatment of persons whose mental illness does not fall within the new definition of mental disorder under the Mental Health ct, such as persons suffering from personality disorders and who pose a risk to themselves and others. reviously, those persons could have been treated under the Mental Treatment cts.

Recent Supreme Court Decisions The Supreme Court has considered the wardship jurisdiction in two significant recent decisions, the first of which was AM v HSE 01 I SC 3, delivered on th January 01 . This case concerned a challenge to the use by the HS of the wardship jurisdiction, rather than the detention provisions contained in the Mental Health ct in respect of Mr C, a person detained in the Central Mental Hospital. The Supreme Court held there was no error in the High Court judgment. The Supreme Court also noted that the use of the wardship jurisdiction to detain a person must be accompanied by deprivation of liberty safeguards such


Winter 2019 dsba.ie Ă ine Hynes is a partner in St John Solicitors. She is chair of the DSBA Mental Health and Capacity Committee, Vice-Chair of the Law Society Taskforce on Mental Health and Capacity

Mental Health Law

Many of the cases which appear in the wardship list concern vulnerable persons with disabilities who are at immediate risk of abuse, including physical and sexual abuse as regular review, legal representation for the person concerned and independent medical reporting. The Supreme Court noted the practice of the resident of the High Court and said “that these protections to vindicate and protect the rights of wards are now in place, is important and that without the range of such protection and those others necessary in each case, uestions might arise as to constitutional and convention compliance.� The second recent Supreme Court decision was delivered in the case of . . rs or ni ersit os ita and rs A. . it atri and rs 01 I SC 3 on 1 th October 01 . That case concerned a challenge to the alleged detention of an elderly lady suffering from dementia in Cork niversity Hospital. The Court of ppeal found in its judgment delivered in July 018, that Mrs .C. was unlawfully detained on dates in July 016, when she was not permitted to leave the hospital. The medical personnel were concerned for her safety and that she would be at risk if she were to leave the hospital. Mrs .C. was subse uently made a ward of court and orders for her placement were obtained. The Court of ppeal held the initial detention in July 016 was unlawful, in circumstances where court orders were not obtained to prevent her from leaving. The Supreme Court held that it had not been sufficiently determined that Mrs .C. had sought to leave, and therefore it could not be determined that she had in fact been deprived of her liberty. However, the Supreme Court gave guidance as to what steps might be taken in circumstances where a hospital or other institution is concerned that the patient lacks capacity to make the decision to leave. The judgment raises very significant issues in respect of persons who may be detained in institutions other than psychiatric institutions and provides some guidance as to appropriate fair procedures to be applied in these cases.

Current Practice in Wardship Hearings ractitioners appearing in court 4 in wardship applications will be aware of the significant changes in the conduct and management of wardship cases. The resident of the High Court, Mr Justice eter Kelly, holds all applications in respect of wardship in open court (with appropriate reporting restrictions as to the identity of the person and with the exception of a small number of in-camera cases). ll wards are invited to attend court at any time, and put their views to the court and if they do not attend in person, their views are considered and taken into account by way of appropriate representation. Mr Justice eter Kelly has repeatedly indicated in open court that all wards have the right to e ual access to the law and cannot be discriminated against on the basis of disability. ardship was considered to deprive a person of their legal capacity in all aspects of their lives. Now in practice, substituted decisionmaking in wardship cases, is more commonly utilised on a matter-specific basis and as a last resort, where the life or health of the person who has lost mental capacity is at risk. The mental capacity of the person concerned is kept under regular review. In addition, it is now more commonly used as a temporary measure and wards are regularly discharged from wardship if they recover mental capacity. ward can apply at any time for discharge and the resident of the High Court will facilitate a hearing within days of such application. hile it may be some considerable time before the ssisted Decision-Making ct is fully implemented, we can take some comfort that evolving case law and practice is increasingly re ective of many of its principles. Our courts have long since recognised the principle of presumption of capacity have approved the functional approach to assessing capacity and our courts apply the subjective test if the person cannot express their wishes. P the Parchment 53


Joanne Hyde is a partner and head of the employment department at Eversheds Sutherland

Employment Law

Sunday Work Clarified by High Court Joanna Hyde says that a recent decision of the High Court in the case of Trinity Leisure Holdings Limited trading as Trinity City Hotel v Sofia Kolesnik and Natalia lfimova ( 01 I HC 6 4) has brought much needed clarification to the issue of Sunday work, and just how far an employer needs to go in demonstrating that the requirement to work on Sundays has been taken into account in the determining of an employee’s pay Background

The employees’ complaints were upheld by the Rights Commissioner at first instance, and the employer was directed to pay the employees a premium of 30 for hours worked on Sundays during the period covered by their complaints

The employees in this case were paid a at hourly rate of . 3 including for Sunday work, which at the time was in excess of the minimum wage. The employees’ contracts both contained a statement that their hourly rate of pay included “your Sunday premium based on you getting e er third unda o i.e. ou or t o unda s out o three . The contracts did not specify what portion of the employees’ pay was referable to the fact that they were re uired to work on Sundays, and it was on this basis that the employees referred their complaints to the Rights Commissioner under the Organisation of orking Time ct 1 (the “ ct”).

Legislation Section 14(1) of the ct provides that unless the re uirement to work on Sundays has been taken into account in determining the employee’s pay, the employee must be compensated by one of the following means: 1. ayment of an allowance . n increase in rate of pay 3. aid time off, or 4. Some combination of two or more of the above.

Employees’ Case The employees argued that because their contracts did not identify what portion of their pay related to Sunday work, the re uirement to work Sundays had not been taken into account in determining their pay, and they were therefore entitled to be compensated by one of the means set out in section 14(1) of the ct. The employees’ complaints were upheld by the Rights Commissioner at first instance, and the employer was directed to pay the employees a premium of 30 for hours worked on Sundays during the period covered by their complaints. That decision was appealed by the employer to the Labour Court which affirmed the RC’s initial finding and held that the employer had “failed to tender an e iden e to the ourt in re ation to hat i an e ement o the om ainant s hour rate o a as s e i a re erab e to her ontra tua ob igation to or on unda s .

High Court Appeal The employer appealed the determination of the Labour Court to the High Court, arguing that the 54 the Parchment

Labour Court was wrong to find that the re uirement to work on Sundays had not been taken into account in determining the employees’ pay in circumstances where the employees’ contracts expressly stated that it had been. In allowing the employer’s appeal, the High Court held that the Labour Court had made an error of law in deciding that a clear statement in the contract of employment that the rate of pay included a Sunday premium could not be relied upon and that the employer was obliged to provide a breakdown of the Sunday work component of the employees’ pay. hile there was no evidence before the court to rebut the wording of the contract, the High Court did note that “a statement in a contract that the rate of pay ta es a ount o the re uirement to or on unda s ma not a a s be on usi e . However, it went on to state an employee would have to “advance some credible evidence to rebut the e ress ro ision o the em o ment ontra t or at least so as to shift the onus of proof in the matter to the em o er . s an illustration of when this might arise, the High Court gave the example of an employee whose rate of pay had initially been greater than the minimum wage, but where at the time of their complaint was no longer above that level. In such circumstances, the court commented, it would be difficult to argue that the rate of pay still re ected the re uirement to work on a Sunday.

Impact of judgment Recent decisions of the RC and Labour Court had espoused the position that employers could not simply rely on a statement in the contract that the requirement to work Sundays had been taken into account in the determination of the employee’s pay, and instead needed to go further and identify the portion of the employee’s pay which represented a premium for having to work on a Sunday. This judgment confirms that there is no such re uirement, and brings welcome clarification to the issue of pay for Sunday work. However, as the High Court pointed out, the wording of the contract may not always be conclusive, and if the employee can provide credible evidence which contradicts the contract wording, the burden of proof will shift to the employer to show that the re uirement to work on Sundays has genuinely been factored into the employee’s pay. P


Make Life Easier We’ll bring order to the paperwork,  so you can practise better law.

Before

After

•  Confidentiality Assured  •  Bulk Copying

•  Full Confidentiality Agreement Available •  Binding  •  Printed Tabs  •  Ring Binders

•  Secure Collection & Delivery Service Available

6 Jervis Street, Dublin 1, D01 XT59 T: 01 872 5077 | E: jervis@snap.ie | snap.ie

ORCA

PRINT

WE LOVE TO SWEAR... AND STAMP, AND SCAN.

Orca Print, located 30 seconds from the Four Courts (next door to The Legal Eagle Pub) is a legal service based company that provides an array of goods and services to legal professionals all in one place. SOME OF THE SERVICES WHICH ORCA PRINT PROVIDES ONSITE ARE: · A Commissioner for Oaths for swearing documents · Stamp duty fees on Court documents · Comb binding and heat binding · Quick turnaround for copying briefs · Books of Pleadings/Authorities (tabulation, pagination etc.) · Photocopying and printing · Scanning and faxing · Consultation room · Computer access Orders for Books in excess of 10,000 pages would require at least one days’ notice.

Tel: 01 8044509. Email: info@orcaprint.ie 3 Inns Quay, Chancery Place, Dublin 7. Opening Hours: 9-5 Monday to Friday, or by special arrangement.


Left to right; Maeve Delargy, Deidre Farrell, Matthew Jolly BL, Blathnaid Evans (Partner, Lemans), Des Ryan BL, Claire O’Hagan

DBSA Younger Members’ Committee Employment Law CPD Event The landmark English Supreme Court decision in Tillman v EghonZeger Limited 01 KSC 3 which extended the application of the law of severance in restraint of trade clauses has not changed the substantive law on the same point in Ireland, although it will be interesting to see if Irish courts follow the authority if when faced with the same uestion – such was the conclusion of the panel of three speakers at the DSB Younger Members’ employment law C D on th November last. The Tillman decision is nglish authority to the effect that where unreasonable or unenforceable words in restraint of trade clauses in employment contracts can be severed without the necessity of adding to or modifying the wording of what remains, a court has discretion to excise those words from the relevant clause and leave what remains as enforceable in certain limited situations. The Tillman decision is also nglish authority for the proposition that a provision restricting an ex-employee from holding ac uiring a shareholding in a competitor post-termination is considered a restraint of tradeand unreasonably wide - as it would prevent an employee from 56 the Parchment

holding even one share in a publicly uoted competitor. Speaking at the event Des Ryan BL advised attending solicitors to ensure when drafting restrictive covenants that the employer’s legitimate interest is identified as precisely as possible and objectively justified on the facts available at the time the contract is entered into and for the duration of the term if possible. Mathew Jolley BL advised attendees of the costs warning that emanated from the Tillman decision. In the sole judgment of Lord ilson in Tillman in that case, ilson LJ suggested that there may be cost conse uences for employers who are successful in enforcing restraint of trade clauses in employment law contracts but which re uired the aid of the law of severance to do so. Bl thnaid vans, partner at Leman Solicitors, who also moderated the discussion on the morning, recommended advising employer clients of the practical issues arising on the inclusion of restrictive covenants in fixed term contracts. The panel the discussed reliefs which could be sought by employers when issuing proceedings seeking a ‘springboard

injunction’ against a former employee. springboard injunction is designed to cancel out the unlawful advantage, head-start or “springboard” that an employee may gain through the breach of provisions of an employment contract.The decision of the nglish and elsh Court of ppeal in Dyson e hno og imited ierre e ere C Civ 8 was discussed in this respect. In that case the employee’s former employer sought to prevent its ex-employee from misusing its former employer’s confidential information. The previous employer placed focus on its ex-employee’s breach of a contractual re uirement for him to notify it of a job offer by a third party business. Des Ryan BL noted also that contrary to the decision in that case there is a wide body of case law in Ireland to the effect that a provision in an employment contract which re uires an employee to notify an employer of a job offer made by a third party business privately would not be enforceable. The Younger Members Committee would like to thank the speakers, Leman Solicitors for their generous support and Claire O’Hagan, solicitor with Mason Hayes Curran for organising the event.


Winter 2019 dsba.ie

DSBA Younger Members

Charity Table Quiz – a Great Success The Younger Members Committee of the DSB in conjunction with the Young rofessionals of the Chartered ccountants in conjunction with the Legal inance Network organised a table ui in aid of the mer Casey oundation in Mulligan Haines, 3 Dame Street after work on the 1st November last. The event was very kindly sponsored by Brightwater Recruitment. It was a tremendous night with a turnout of over 160 people forming teams of both junior Solicitors and ccountants. Comedian Christina McMahon was ui master on the evening and put uestions to creatively named teams such as ui -Close Trust’, ui endens’, Ignorant until proven Guilty’ and Trivial Recruit’ (unsurprisingly a Brightwater team). In total over 1,400 was raised by the mer Casey oundation. The mer Casey oundation was established to fund the detection, prevention and cure of ovarian cancer and was set up in 006 following the death of mer Casey, a young solicitor from Cork who was working with Mathesons at the time of her diagnosis. rofessor Noreen Gleeson at St James’s Hospital spoke about how the oundation has worked closely with St. James’s in recent years and that its funding of scanning and laparoscopic e uipment has resulted in better patient experiences. Recently, the oundation supported a part time physiotherapist at that hospital to support gynae patients pre- and post-surgery and those dealing with the longterm effects of cancer and its treatment.

The Committees of the DSBA Younger Members and Young Professionals of Chartered Accountants at the jointly held table quiz on the 21st November 2019

Jean O’Donovan, commercial director of Brightwater, addressed the crowd about how the market for solicitors is continuing to grow with competitive salaries and remuneration packages. or information Brightwater’s salary survey please visit their website on www.brightwater.ie. fter the ui , there was a ra e with some great pri es to be had including

vouchers for restaurants, shopping, a case of wine and tickets to both airyhouse and Leopardstown. The Committee wish to thank everyone who supported the event on the night and who bought ra e tickets. In particular, the Committees wish to thank Brightwater for sponsoring the event and to everyone who sponsored a pri e.

DSBA Younger Members Committee – Who We Are The Young Members Committee of the DSBA represents the interests, both professionally and socially, of the younger and most recently ualified members of our profession, from newly ualified up to years . e have wide mix of committee members from all sectors, large, mid-si ed and small firms, sole practitioners, in-house solicitors and

solicitors in other roles. The Younger Members Committee host a wide range of educational and social events throughout the year. e also endeavour to facilitate the interaction between young solicitors in Dublin, those in other areas of Ireland and in other jurisdictions and in particular provide up to date information on legal matters

principally through our seminar series. This committee of the DSBA aims to offer support, advice, information and networking opportunities to the younger solicitors of our profession. For further details on joining and upcoming events, email: Deirdre arrell Deirdre amoryssolicitors.com or ideen Shanley ashanley bhsm.ie the Parchment 57


News

Lawyers against Homelessness It is now 0 years since Brother Kevin opened his door to help the homeless. Since then his operation has expanded beyond belief and thousands of homeless people benefit from hot food, lunch packages and medical assistance on a daily basis. Brother Kevin is truly a beacon of hope for many people. Lawyers Against Homelessness recently held its seventh CPD conference at the Capuchin Day Centre for Homeless People, Bow Street. Anne Doyle, Journalist, presenter and former newsreader was the facilitator and acknowledged Brother Kevin’s 0 years dedication to the homeless. To date, Lawyers Against Homelessness

have raised over 13 ,000 over the two years, every single penny of which has been given to Brother Kevin towards his lifelong fight against homelessness. 100 of the proceeds of the conferences go direct to the Capuchin Day Centre. Law firms which have been involved include BLM, Gore & Grimes, Byrne Wallace, A&L Goodbody, McCann it Gerald, nnis, Kent Carty, Downes, Ivor Fitzpatrick, Hayes McGrath and many others. The ttorney General, Members of the Judiciary, the Bar Council, the Law Library and many members of the Bar are also involved. Kevin O’Higgins

Photo: Constance Cassidy SC and Brother Kevin Crowley

DSBA President at Four Courts Event Tony O’Sullivan, President of the Dublin Solicitors’ Bar Association, was delighted to represent the DSBA, Irelands Largest Bar Association at the launch by Hanna Fine Art of the print of Stephen McClean’s original work - “ ntering the our Courts”. The painting marks the centenary of the Sex Dis ualification (Removal) ct 1 1 , which enabled women to become barristers and solicitors. s Tony highlighted on the night the DSBA’s primary purpose is to be the voice of solicitors, driving excellence in the solicitor’s profession and safeguarding the rule of law. key element of this is the promotion of gender equality, diversity and inclusion. In addition to celebrating 100 years of women in the law the sales will provide contributions to Breast Cancer Ireland and the Denham ellowship.

Photo: DSBA President Tony O’Sullivan, Former Supreme Court Judge, Ms. Justice Susan Denham and President of the Law Society, Michele O’Boyle 58 the Parchment


Winter 2019 dsba.ie

News

Beauchamps Partner, Mark Heslin, appointed High Court Judge Mark Heslin, a former senior Partner in Beauchamps’ litigation and dispute resolution team has been appointed a judge of the High Court. Mark spent his career to date at Beauchamps, starting as a trainee at the firm in the 1 0s. or over two decades Mark has practiced exclusively as a litigator throughout the Irish Courts system, with a particular focus on commercial disputes and proceedings in the Commercial Court, becoming a highly valued adviser to major financial institutions, State bodies, owner-managed businesses, corporates and individuals. He has also tutored at the Law Society and published regularly, including in the archment. Commenting on Mark’s appointment,

John White, Managing Partner at Beauchamps, said: “Mark has been the best of colleagues and all of us here at Beauchamps are delighted for him. This represents the culmination of 28 years of excellence and hard work on Mark’s part, becoming a leading practitioner in his field. He has been integral to the continued success of not just our litigation team, but the wider firm. His appointment is a historic and proud day for Beauchamps and I congratulate him on this well-deserved honour.” The Dublin Solicitors Bar Association and The Parchment wish Mark every success in his newly appointed role as a Judge of the High Court.

Farewell Frank The legal and wider community were saddened following news in late October 01 of the death of well known Solicitor rank ard. rincipal of rank ard and Co. Solicitors, Ormond Quay Upper, Frank ualified as a Solicitor in 1 . Speaking to the archment in 01 he said at the time: “It has being a roller coaster four decades but I can say assuredly it’s never been boring and no t o da s ha e been the same. In those years you could do your degree and be ome a o i itor in a itt e o er three ears. Frank had a love of horse racing and he acted for many people involved in the horseracing industry and other sports. In 1 rank got a phone call from lbert Reynolds who was then Leader of Fianna Fail asking him if he would act on behalf of ianna ail. He continued acting for the Fianna Fail party for well over two decades. The DSBA extends its deepest sympathies to Frank’s wife Mary, his children and large circle of family and friends. the Parchment 59


In Practice

PRACTICE OBSERVATION FOR CONVEYANCERS As a specialist family law solicitor I regularly receive enquiries from unmarried parties who are living together and whose relationship has broken down. Frequently the enquirer is stunned to learn that their former partner may have rights as a cohabitee under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 which commenced in January 2011. In all cases the enquirers have stated that they were not advised by their conveyancing solicitor in respect of the 2010 Act when purchasing their property. The 2010 Act provides a redress scheme for cohabitants whose relationship ends through separation or death. A cohabitant may apply to court for maintenance, pension adjustment orders, property adjustment orders or a share in the estate

(assets) of a cohabitant who has died. Advice in respect of the 2010 Act needs to be given to all people purchasing a property, and of the option of entering into a cohabitation agreement when they’re purchasing a property, regardless of whether they are in a relationship or not. It’s important to note that in the case of D A the court in considering what constitutes “living together” stated it would look at all the circumstances and that the parties don’t have to be physically living together day by day. Although clients may consider their relationships to be “unregulated”, under the 2010 Act a partner may acquire rights without either party intending such rights to be bestowed. Unless parties contract out of the 2010 Act they fall under it, if they satisfy the definition of a

cohabitant. Ultimately, a party seeking redress under the 2010 Act may not be successful. However, that may only be determined after lengthy court proceedings. I believe this is a serious area of potential risk for solicitors carrying out conveyancing. In order to protect against this risk it may be prudent for conveyancers to include a question in the purchaser’s uestionnaire regarding relationship status which is broader than “married or single”. Also conveyancers may wish to consider including a reference to the 2010 Act in their initial advices to a purchaser to ensure that they have given the advice and are therefore covered, if it becomes an issue in the future.

date. Notice of any such intended application must be given to the registrar (via email to courtofappealcivil courts.ie). Personal insolvency callover – a recurring call over of personal insolvency cases listed for hearing for the following four weeks will take place each Monday at 10.30am before Mr Justice McDonald. Counsel or solicitor retained those cases are required to attend and to confirm to the court whether the cases are still proceeding and if so, an accurate estimate of the hearing (as agreed in advance between the parties) must be furnished to the court. Failure to attend will result in the cases has been struck out. Naas Courthouse - as of Monday, 18

November 2019, Naas courthouse will once again be the venue for all Circuit and District Court sittings for Naas. Judicial review – all applicants seeking leave to apply for judicial review in the e arte Judicial Review list each Monday should note that from Monday 2nd December 2019, a copy of the papers for court must be lodged in the Central Office on the day of the intended application between 10 and 11am. Copy papers will not be accepted in court by the registrar.

A ri

angan

angan

om an

o i itors

COURTS NEWS High Court personal injuries – the High Court sittings in Dundalk commencing on 2nd December have been cancelled due to a shortage of judges. This follows a similar cancellation of the Kilkenny High Court list in November and the South astern Circuit Appeals list in December. Court of Appeal – in light of the recent nomination of new judges to the Court of Appeal, additional time has now become available in 2020 for the hearing of appeals. Parties in cases which have been allocated a hearing date in 2021 and who wish to have an earlier hearing date, may apply to the judge taking the directions list on any Friday in term for the allocation of an earlier hearing

i ian ei ommittee

hair o D

A itigation

JURATS Practitioners please note a number of issues have arisen in relation to the issue of Jurats. These are now being checked. They must be properly completed. few pointers - do not put in the declarant’s S number as it may be in breach of GDPR. By way of photo ID a driving licence number can quoted, as well as a passport. It being observed in the central office, that there are parts missing in the Jurat. The solicitor or commissioner, has to certify whether he/she knows the person or is identified to the person by someone known to them. The courts service has advised that Jurats are not being completed or parts are being omitted and the DSB have been told these won’t be allowed in future. arra 60 the Parchment

o h ain

om

o h ain

o


Winter 2019 dsba.ie Photography: Owen O’Connor

Right: Paul Ryan and Emer O’Doherty Far right: Outgoing DSBA President Greg Ryan makes a presentation to Maura Smith of the DSBA

DSBA Annual General Meeting

The DSBA held its annual general meeting on 29th October 2019 at the Westbury Hotel. A capacity crowd was in attendance. Tony O’Sullivan, Beauchamps took over the reins as the new DSBA President for the year ahead.

Left: Diego Gallagher and Elaine Given Far left: Tom Menton, Sonia McEntee, Michael Quinlan, Robert Ryan and Helen Sheehy

Right: Deirdre Walsh with her husband Tony, the new DSBA President Far right: Keith Walsh, Joe O’Malley and Ken Murphy

Left: Imelda Reynolds, new DSBA President Tony O’Sullivan, Eddie Evans and John White Far left: Ciara Cloake and Sarah Jane McGuinness

the Parchment 61


DSBA Property Seminar

The DSBA Property Committee hosted a CPD seminar on 5th November 2019. The seminar was entitled “How to deal with banks in 2020.” The speakers were Piaras Power, Eversheds Sutherland; Ronan McLoughlin, Gallagher Shatter and Darragh Blake, Eversheds Sutherland.

Photography: Owen O’Connor

Left: Shona Madden, Madden Law; Joe Thomas, O’Reilly Thomas Far left: Aine Keenan, Noonan & Son; Maura Donnelly, M Donnelly & Co

Left: Piaras Power speaker; DSBA President Tony O’Sullivan; Ronan McLoughlin, speaker Far left: Aine Quinn, Bailey Homan Smyth McVeigh; Aoife O’Neill, Gartlan Furey

Right: Seamus McGuire, Seamus McGuire & Co; Martin Ceillier, M&B Ceillier; Dermot Furey, Gartlan Furey Far right: Deirdre Walsh, Chief State Solicitor’s Office; Mary Barrett, Eugene F Collins; Ciara Cunningham, Maples & Calder

Left: Triona Ryan, Byrne Wallace; Fergus Hennessy, Byrne Wallace Far left: Ethna Ryan, Griffin Solicitors; Tony O’Sullivan, President DSBA; Mellisa Guy, Richard Black

62 the Parchment


Winter 2019 dsba.ie Photography: Owen O’Connor

Right: David Scott, Mason Hayes & Curran; Ruth Bannon, Mason Hayes & Curran Far right: Avril Scally and Gemma Coady, Mason Hayes & Curran; Katie McAuliffe Mason Hayes & Curran

DSBA Litigation Seminar

The DSBA Litigation Committee hosted a CPD seminar on 7th November 2019. The seminar was entitled “Medical Negligence Litigation – A Practical Guide”. The speakers were Peter McKenna (consultant obstetrician and gynecologist); Sara Moorehead SC; and Cormac Joyce (aesthetic and hand surgeon). The Chairperson of the seminar was Mr Justice Charles Meenan.

Left: Fergus O’Regan, O’Regan Little; Paul Beegan, Newman Solicitors; Gerard Prendiville, Newman Solicitors Far left: Aimee Dillon, Liston & Co; Mary MacNeill, Cullen & Co

Right: Jenny Colfer, Conor Newman, State Claims Agency; Laurence Mulligan, DAC Beachcroft Far right: Elizabeth Bree and Aisling Gannon, Eversheds Sutherland

Left: Avril Scally, the Hon Mr Justice Charles Meenan, Dr Peter McKenna, Eamonn Carroll Far left: The Hon Mr Justice Charles Meenan, Mark McCabe, Hayes Solicitors

the Parchment 63


DSBA Practice Management Seminar

The DSBA Practice Management Committee hosted a CPD seminar on 12th November 2019. The seminar dealt with antimoney laundering compliance, solicitors’ accounts regulations and Law Society audits, and the new complaints regime under the auspices of the LSRA. The speakers were Brian J Doherty, CE of the LSRA; Seamus McGrath, Head of Financial Regulation at the Law Society and Jim Ryan, investigating accountant with the Law Society. The seminar was chaired by Joan Doran.

Photography: Owen O’Connor

Left to right: Jim Ryan, Solicitors Accounts Regulations and Law Society Audits; Joan Doran Joan Doran Solicitors, Chairperson; Seamus McGrath AntiMoney Laundering Compliance and Brian J Doherty, LSRA

Left: Ann Gibbons, Gibbons Associates; Ailbhe Rice, Rice Jones; Denis Ryan, Keith Walsh Solicitors Far left: Cormac Brennan, O’Connell Brennan Solicitors; Muriel Walls, Walls & Toomey Solicitors

Right: Tim Shannons, Shannons; Denis McSweeney, Denis McSweeney; Robert Anderson, Anderson & Gallagher Far right: Karen Vickers, LK Vickers; Denis Barror, Barror & Co

Left: Niall Cawley, Niall Cawley Solicitor; Anne Dolan, Anne Dolan & Co; Deirdre McDermott, Denis I Finn Far left: Mairead Leyne, Mairead Leyne Solicitors; Roger McCormack, Rutherfords

64 the Parchment


IF LIFE GIVES YOU LEMONS WE’RE HERE TO HELP Consult a Colleague now in total confidence

Call us on 01 284 8484 All calls to the Consult A Colleague helpline are treated in the strictest confidence - there is no need to give a name or number. A confidential free service from the DSBA.

www.consultacolleague.ie


CORT

Software for Solicitors

CORT2019

Requisitions on Title

Approved by the DSBA and licensed by the Law Society of Ireland to reproduce the Requisitions on Title

CORTBase

Case & Risk Management Simple user interface and dedicated support line to help you maximise efficiency and productivity

CORTBase

Legal Accounts Innovative design making this the easiest and the fastest legal accounts system available today

Innovative - Affordable - Reliable

01 683 1927 cort@cortsite.com www.cortsite.com

2019-03 cortbase-parchmentad_Final.indd 1

27/03/2019 12:16

Profile for 256 Media

Parchment Winter 2019  

Parchment Winter 2019  

Profile for 256media