D UB LIN SOLICITORSâ&#x20AC;&#x2122; B AR ASSOCIATION MAGAZ INE | WIN TER 2016 | ISSU E 70
JOSEPHA MADIGAN TD CROSS-EXAMINED 20 MINUTES WITH SIMON McALEESE
QUANTUM OF SOLACE? New Personal Injuries Book Of Quantum
09/12/2016 3:09 p.m.
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Winter 2016 dsba.ie
From the Editor
elcome to the Winter edition of the Parchment, the last for 2016. It has been a huge year for the profession with the arrival of the new Legal Services Regulatory Authority. It is too early to assess the changing legal landscape but 2017 should see the Authority bedding down after its recent establishment. The revised, or ‘new’ Book of Quantum is still hot off the press and we feature two articles about its publication which will impact on our plaintiff and indeed defendant clients. The previous Book was over 12 years old and was in dire need of updating, so its arrival is most welcome. The new Book considers significantly more injuries than before and has more comprehensive detail. The new Book is there to assist our Judiciary in deciding the level of damages to be awarded in a case. But as before, all cases will continue to be individually assessed by the Court. In this edition, we put the spotlight on Josepha Madigan T.D. and colleagues Simon McAleese and Darragh Mackin and there are a host of other articles
that will update you on different areas of the law. Our new DSBA President has hit the ground running and Aine Hynes promises to have a busy and event-filled year ahead. There are many issues facing the profession and the silent killer is the continuing number of our legal colleagues who have taken their own lives. Suicide in the legal profession is sadly prevalent with 2016 being a particularly tragic year. We must look out for each other. A line in a song from my native County Mayo was never more fitting “Act each as a brother and help one another” in these demanding and often stressful times. Can I wish you and your loved ones a peaceful and relaxing Christmas and here’s to a successful and healthy 2017 for one and all.
John Geary email@example.com
DSBA COUNCIL 2016/2017
ROBERT RYAN DSBA Vice President
GREG RYAN Treasurer Chair - Commercial Law Committee
ELAINE GIVEN Honorary Secretary
TONY O’SULLIVAN Programmes Director
JOSEPH O’MALLEY Chairman of the Litigation Commitee
DIEGO GALLAGHER Chair - IP and Technology Committee
SUSAN MARTIN Chair of Family Law Committee
LAURA HORAN Chair of Younger Members’ Committee
PAUL RYAN Chair of In House Committee
PUBLISHED BY The Dublin Solicitors’ Bar Association, 1st Floor, 54 Dawson Street, Dublin 2.
The DSBA, its contributors and publisher do not accept any responsibility for loss or damage suffered as a result of the material contained in the Parchment.
of an advertisement in the Parchment does not necessarily signify official approval by the DSBA, and although every effort is made to ensure the correctness of advertisements, readers are advised that the association cannot be held responsible for the accuracy of statements made or the quality of the goods, services and courses advertised. All prices are correct at
time of going to press. Views expressed are not necessarily those of the DSBA or the publisher. No part of this publication may be reproduced in any form without prior written permission from the publishers.
AINE HYNES DSBA President
EDITOR John Geary PARCHMENT COMMITTEE Julie Doyle Stuart Gilhooly Áine Hynes Geraldine Kelly Killian Morris Gerry O’Connell Kevin O’Higgins Joe O’Malley Keith Walsh COPYRIGHT The Dublin Solicitors’ Bar Association
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A good lawyer is not just a lawyer page 6
20 Minutes with...
New DSBA Council and Committees
Killian Morris talks to Simon McAleese about specialising in media law and litigation and his work on high-profile cases in the Irish newspaper industry
20 MINUTES WITH... SIMON McALEESE
Meet the new DSBA Council and committee for 2017
The New Book of Quantum Jack O’Brien assesses the new Book of Quantum and its impact on personal injuries in the future
The new Book of Quantum - a UK perspective Stephen McGuinness assesses the significance of the new Book of Quantum in the context of how personal injury cases are assessed in England and Wales
What Does Donald Trump’s Victory Mean for Lawyers?
Andrew Cody lifts the lid on the personal injury claims harvesters
Flor McCarthy opines that change can be good, even for solicitors
Dublin Solicitors’ Bar Association 1st Floor, 54 Dawson Street, Dublin 2, Ireland T: 01 670 6089 E: email@example.com W: www.dsba.ie
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Winter 2016 dsba.ie
REGULAR FEATURES 01 Editor’s Note 04 President’s Message 48 In Practice 50 DSBA Younger Members 54 DSBA News 56 Photocall 64 Closing Argument
DSBA Irish Book Awards
The Garnishee Option
Dwelling House Relief
Review Your IT Security
Champion of the Cause
The Benefits of DSBA Membership
Kevin O’Higgins interviews solicitor and Dail deputy, author and mum of two, Josepha Madigan, T.D.
The nominations are announced for the annual DSBA Irish Legal Book Awards
James Seymour assesses this useful option for clients
Finola O’Hanlon provides an overview on this tax relief
Greg Ryan examines the risks and offers solutions for cyber attacks
Julie Doyle interviews leading human rights solicitor Darragh Mackin
Mark Heslin examines the circumstances in which the court will (and will not) apply a discount in relation to a minority shareholding
There are many reasons why membership of the DSBA is beneficial to you and your practice - so join now!
Josepha Madigan cross examined the Parchment 3
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Message from the President
Building on a Great Tradition
have great pleasure in welcoming you to this winter edition of The Parchment. This is my first message to you as the President of DSBA. I took up the chain of office on 26th October at our AGM and what struck me most (apart from the fact that it sets off a black dress very nicely), is the witness it bears to the dedication and commitment of the past presidents of our association. I made a commitment to honour the work and dedication of our past presidents by ensuring that I, as your president, will represent members’ interests at every opportunity – from lobbying on your behalf on the implementation of the Legal Services Regulation Act to promoting the assistance the DSBA offers solicitors at times of need. One of the first tasks of my presidency is to reflect on the great work done last year by Eamonn Shannon and to say it has been a great pleasure to serve as his Vice-President. Eamonn has had a stellar year, ensuring with the help of our outgoing Treasurer, Robert Ryan, that the finances of the DSBA are in good shape, and promoting the interests of our members and clients on issues such as the move of the Children’s Courts from Dolphin House to the Bridewell. Eamonn’s year culminated in a spectacularly successful conference to Washington. Eamonn is a hard act to follow, but I am looking forward to the challenge working along with my vicepresident Robert Ryan and council to focus on the issues ahead for the profession this coming year. There are two current issues on which we are lobbying on your behalf to Minister Fitzgerald. I have written to the minister seeking a meeting with her and the DSBA taskforce on the Legal Services Regulation Act to discuss the implementation of the Act and to highlight some of the concerns for practitioners, in particular, the concerns of additional costs to solicitors arising from the establishment of the Solicitors Regulation Authority. Another significant issue that practitioners are concerned about is the taxation of costs system. It has become increasingly clear over the last number of years that the system is failing solicitors and putting, in some cases, unbearable pressure on businesses. At this particular time of year, when practices are struggling to ensure that they meet their tax and professional indemnity liabilities, it is another layer of
pressure which solicitors simply do not need. I will be updating you on these issues in the next edition of The Parchment. A very pleasurable part of the work of the President of the Association is to make contributions on your behalf to a number of charities. It’s true to say charity starts at home and DSBA has a long established bursary which is ably managed by former DSBA Presidents Jimmy McCourt and Helen Sheehy. Every year the bursary provides assistance to trainees to enable them to realise their dreams of becoming fully qualified solicitors. In addition, by the time this edition of The Parchment goes to print, I will have had the great pleasure of presenting the DSBA contribution to the Coal Fund to the Lord Mayor, Brendan Carr, at our annual December meeting in the Mansion House. This is a long-established tradition and one I am pleased to continue on your behalf. However, the contribution to which I am most proud to make on your behalf is the contribution to the Solicitor’s Benevolent Fund. There is a strong public perception that solicitors have no financial struggles. However, as described by Tom Menton, the chairman of the Solicitors Benevolent Association, the fund is sometimes called upon to simply put food on the table. We may be witnessing an uplift generally in the economy, but it is always important to remember, in the words of Tom Menton: “Those more unfortunate than ourselves.” It is not just smaller practices that struggle with the stresses of managing a business. From our meetings with the larger firms last year, what emerged is that they are managing stiff competition from international firms and are faced with the increasing commoditisation of legal services. This issue and also the issue of relevant professional education for trainees in the big firms are problems which I would like to take an opportunity to address in my year as your president. I want to take a moment to pay a special thanks to all those larger firms who have kindly hosted DSBA seminars over the past number of years. It has been a great collaborative effort which I hope will be continued into the future under the leadership of our programmes director, Tony O’Sullivan. An issue that is really troubling to me is the loss of colleagues to suicide over the last number of years. The stresses troubling our colleagues need to be addressed and faced by us as a profession. At our AGM, I committed to promoting the work that the DSBA does to assist solicitors in difficulty. The DSBA set up the ‘Consult a Colleague’ helpline in 1995 and this work continues under the leadership of Paddy Kelly with over 36 active volunteers assisting. This an independent and completely confidential service and the details can be accessed here:
www.consultacolleague.ie. It strikes me also, colleagues, that one of the great benefits of being a member of the DSBA is the collegiality we can enjoy – to get to know each other a little better and go about the business of representing our clients’ best interests in a less adversarial fashion. Another way we get to know each other a little better is through The Parchment. It is a publication of which I and the DSBA members can be proud. In 2015 it won two national accolades at the Irish Magazine Awards under the excellent stewardship of our editor John Geary, including winner of the Business to Business Magazine of the Year. Stuart Gilhooly of course has been one of its best contributors. Stuart is concentrating this year on his role as President of the Law Society, and I would like to wish him every success. He is undoubtedly one of the legal profession’s great volunteers. I am really looking forward to this year as President of the DSBA. We have a great council and it fills me with confidence for the year ahead. Finally, you can know that DSBA is always there to represent your interests, and I as your President, am committed to advocating on behalf of the DSBA members on all issues concerning you. Please contact me at any time. I wish you and your families a happy Christmas and a prosperous New Year. Aine Hynes, DSBA President Building on a Great Tradition
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Simon McAleese of Simon McAleese Solicitors
Simon Says Married to Loraine with two daughters, Simon McAleese was educated at Glenstal Abbey, UCD and the Law Society of Ireland. He lives near Kells, Co Meath and his practice is in Dublin 2. Simon specialises in media law and litigation and has acted in many high profile cases for Independent Newspapers and others. Killian Morris caught up with the adept defamation sage
When did you qualify? Back in 1990 following an apprenticeship, as it was then termed at Matheson Ormsby & Prentice (MOP), now Matheson. If you hadn’t become a solicitor what would you have done? Veterinary science. I applied successfully to transfer to veterinary science after one year of law in UCD. I’d say that there were a lot of relieved animals around the country when I changed my mind and stuck with law! The law faculty was then in the recesses of the arts block in UCD. We recently had our 30-year class reunion. How things have changed. The new Sutherland School of Law is a magnificent stand-alone building with superb facilities. Also the courses being offered by the law faculty are tremendously diverse: law and philosophy, law and Irish, law and business and many more, not to mention the good old-fashioned law degree. I graduated in 1986. Loraine also graduated at that time and we both sat the Blackhall Place entrance exams later that year. They were cruelly tough examinations.
Have you any funny anecdotes from your time as an apprentice? My apprenticeship at MOP commenced in February 1987. At that time, it had 18 partners and operated from two Georgian offices, one at Upper Merrion Street and the other, approximately 200 metres away, on Ely Place. One spent a lot of time running messages from one office to the other. The senior partner then was John Ross, father of Shane Ross, TD, our current Minister for Transport. He was an imposing individual with a distinguished military background. I remember a more senior apprentice introducing us as the two new apprentices, to Mr. Ross. “Ah, more slaves!”, he intoned from behind a massive Victorian partner’s desk, barely looking up. My first job at Matheson was to bring my master’s shoes to the cobbler. My apprenticeship at MOP was great fun. It hosted a wonderfully eclectic cast of colourful and erudite characters. It was a time of extraordinary change in the legal and business world. The new-fangled fax machine was wondrous to behold but was
regarded with a certain amount of odium for the additional pressure that it heaped upon one for timely delivery of documents. Then came time-costing. We were truly appalled but eventually got used to it. Towards the end of my apprenticeship MOP moved to modern offices on Burlington Road. There we encountered for the first time the extraordinary phenomenon of the on-desk computer screen. A further move to bigger offices on Herbert Street followed. Matheson now occupies state-of-the-art offices on Sir John Rogerson’s Quay and has approximately 70 partners. It continues to grow and has great people. I received a training there which was second to none, eventually becoming a partner in its litigation department. Against this large-firm background, you founded a smaller practice. Was it a difficult experience? Yes and no! We set up Simon McAleese Solicitors in 2002. Overnight I became a managing partner, an employer, a facilities
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Winter 2016 dsba.ie In conversation with Killian Morris of Amoss Solicitors
20 Minutes With...
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The new-fangled fax machine was wondrous to behold but was regarded with a certain amount of odium manager and HR person rolled into one; not to mention an amateur plumber and electrician – all of the things that the small practitioner has to deal with. If we asked your best clients to describe you – what would you expect/hope they would say? “He’s not the worst, despite what everyone says about him.” The ultimate Irish compliment! Describe a case you were involved in that has had the most lasting impact on defamation and media law in Ireland.
The case in question is undoubtedly a defamation action brought by communications consultant, Monica Leech, against the Evening Herald newspaper. I acted for the Evening Herald. Ms Leech was awarded €1.87 million by a High Court jury. The award was reduced by the Supreme Court on appeal to €1.25m. Who has had the most influence on your career and why? Tony (Sir Anthony) O’Reilly. He grew up in Glasnevin, very close to where my late father’s family lived. As a boy, Tony was very
friendly with my father and his four brothers (they all went to Belvedere together). It is sometimes forgotten that Tony qualified as a solicitor (in 1958) before going on to develop an extraordinary business career. I acted for Independent Newspapers for 20 years. This involved regular dealings with Tony. His energy was boundless and he was inspirational. I do not think that the amount of good work that Tony O’Reilly has done for Ireland is generally appreciated. He advocated for Ireland wherever he went, using his wide range of sporting, political and business contacts. The American Ireland Fund established in 1976 by himself and his friend, Dan Rooney (later a US ambassador to Ireland), developed an extraordinary network of contacts dedicated to raising funds for philanthropic initiatives throughout the island of Ireland. O’Reilly and Rooney realised that investment geared towards encouragement of peace, reconciliation and equality was the most likely solution to Northern Ireland’s political and social ills. They took a very public stand against paramilitary violence and sectarianism. At the time, Tony O’Reilly was based in Pittsburgh, as head of the HJ Heinz Corporation. It must have been difficult for himself and Rooney to have taken such a stand at a time when the Provisional IRA’s paramilitary campaign was receiving such a large amount of support from Irish-America. If you had the power to change something about how the legal profession operates, what would it be? I’d wish it to be like those US television legal dramas where one has only a single case to deal with, there’s hardly any paperwork and an immediate hearing takes place resulting in dramatic success for you and your client! Describe an event in your personal life which had the most important impact in your development as a solicitor. My dad was dying in hospital when I told him that I was going to establish my own legal practice. He was very proud. Greatest Irish sporting memory? It has to be the 1991 Rugby World Cup quarter final which Ireland lost by one point in the dying seconds of the game. We had agreed that my parents would meet my future parents-in-law for lunch that day. Lunch was temporarily abandoned in order to watch the match. How the Australians pulled that one out of the fire, I’ll never know! What would be your dream holiday? Fly fishing in South America. Tell us something nobody knows about Simon McAleese? I hated The Shawshank Redemption. Any advice for those entering the profession in 2017? A good lawyer is not just a lawyer. P
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DSBA Council & Committees 2016/2017 Council DSBA PRESIDENT: Aine Hynes VICE PRESIDENT: Robert Ryan TREASURER: Elaine Given HONORARY SECRETARY: Greg Ryan PROGRAMMES DIRECTORS: Tony O’Sullivan Joe O’Malley Diego Gallagher Susan Martin John G O’Malley Matthew Kenny Niall Cawley Laura Horan Paul Ryan Joan Doran Killian O’Reilly
Commercial Law Committee CHAIR: John O’Malley, AvantCard Paul Brady, Lavelle Solicitors Edon Byrnes, Byrne Wallace Gearoid Carey, Matheson Laura Fannin, Hayes Solicitors Simon O’Neill, Philip Lee Delia O’Sullivan, Matheson Natalie Purcell, Eversheds Sarah Ryan, Eversheds Aisling Doran, Eugene F Collins
Consult a Colleague CO-ORDINATOR: Paddy Kelly, McKeever Rowan Niall Corr, Niall Corr & Co Geraldine Kelly, Geraldine Kelly & Co Niall Cawley, Niall T Cawley & Co
Criminal Law Committee CO-CHAIR: Matthew Kenny, O’Sullivan Kenny CO-CHAIR: Richard Young, Sheehan & Partners Miska Hanahoe, Michael E Hanahoe Tony Collier, Tony Collier Solicitors Lydia Leonard, Pensions Authority Edward Bradbury, John Quinn & Co Michael Durkin, Office of the Director of Public Prosecutions
Family Law Committee CHAIR: Diego Gallagher, Byrne Wallace Cliona Costello, McKeever Rowan Solicitors
Peter Doyle, Doyle Fox & Associates Kathy Irwin, Irwin Solicitors Avril Mangan, Mangan & Co Jennifer O’Brien, Mason Hayes & Curran Michael Sheil, Micheal Sheil & Partners David Stafford, Greg Ryan Solictors Ruairi O’Brien, John C Walsh & Co Peter Quinn, Sheridan Quinn Michelle Sheeran, Gary Irwin Solicitors Danielle Kerins, D’Arcy Horan Solicitors
In-house Lawyer’s Committee CO-CHAIRS: Paul Ryan, Verizon Services Ireland Limited Hugh Dockery, Chief State Solicitor’s Office Pauric Heraghty, Axa Insurance David Lawless, Icon Plc Leonora Mullett, Dublin City Council Linda Ni Chualladh, An Post Terence O’Connor, Tulsa Child and Family Agency Ciaran Brady, Anima
IP & Technology Committee CHAIRMAN: Susan Martin, Martin Solicitors Lucy Craze, Mason, Hayes & Curran Carmel Hynes, St John Solicitors Elaine Morrissey, McDowell Purcell Sean O’Brien, O’Brien Ronayne Elaine Breen John Glynn, John Glynn & Co Marie McGinley, Eversheds Greg Ryan, Greg Ryan Solicitors Claire Morgan, Orpen Franks
Litigation Committee CHAIR: Killian O’Reilly, McDowell Purcell Susan Martin, Martin Solicitors Joe O’Malley, Hayes Solicitors Eamonn Carroll, State Claims Agency Clifford Healy, Matheson Emma Keegan, Beauchamps Darragh Lenehan, AXA Legal Services Solicitors Conor Lennon, Allied Irish Bank Plc James McMahon, St John Solicitors Catherine Molloy,AIG Barra O’Cochlain, John Glynn & Co Anne O’Connell, Sherwin O’Riordan Valerie Shaw, National Treasury Management Agency Emmet Whelan, Byrne Wallace Rowena McCormack, DAC Beachcroft
Kevin Dunne, Hayes Solicitors Gerard Prendiville, Newman Solicitors Alisia Mulvany, Aaron McKenna Solicitors Brian Ormond, McDowell Purcell Avril Scally, Lavelle Coleman Conor MacGuill, Mac Guill & Company Jessica Cantwell, Eugene F Collins Ailbhe Levingstone, DWF Emily Jane, McGuire Kane Tuohy Solicitors Laura Horan, MacGeehin Toale Susan Martin, Martin Solicitors Fiona McAleenan, Canal Quarter Solicitors
Mental Health & Capacity committee CHAIR: Joan Doran, Joan Doran Solicitor Aileen Curry, Office Of The General Solicitor for Minors and Wards of Court John Costello, Orpen Franks Nicole Dillon, Porter Morris & Co Olive Doyle, Byrne Wallace Joan Doran, Joan Doran Solicitors Patricia Hickey, Office of the General Solicitor for Minors and Wards of Court John Neville, John Neville Solicitors Mark Felton, Felton McKnight & Co Orla Keane, Arthur Cox Katharine Kelleher, Comyn Kelleher Tobin
Parchment Committee EDITOR: John Geary, J V Geary Solicitors Joe O’Malley, Hayes Solicitors Kevin O’Higgins, Kevin O’Higgins Keith Walsh, Keith Walsh Solicitors Killian Morris, AMOSS Gerry O’Connell, Doherty Ryan & Associates Geraldine Kelly, Geraldine Kelly & Co Julie Doyle, Beauchamps
Practice Management Committee CHAIR: Niall Cawley, Niall T Cawley & Co Eamon Carney, Carney McCarthy Ruadhan Killeen, Killeen Solicitors Sonia McEntee, McEntee Solicitors David Ballagh, Ballagh Solicitors Ray Ryan, Ryan & Crowley
Probate and Tax Committee CHAIR: Aoife McFadden, St John Solicitors Anne Stephenson, Stephenson Solicitors Aoife McFadden, St John Solicitors Finola O’Hanlon, O’Hanlon Tax Limited
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Winter 2016 dsba.ie
DSBA Council 2016-17
Aine Hynes DSBA President
Robert Ryan DSBA Vice President
Greg Ryan Treasurer
Elaine Given Honorary Secretary
Tony O’Sullivan Programmes Director
Brian Broderick, O’Hanlon Tax Limited Trea McGuinness, Porter Morris Aileen Hughes Courtney, Michael Sheil & Partners Aileen Curry, Office of the General Solicitor for Minors and Wards of Court Orlagh Spring, M Roche & Co
Property Law Committee CHAIR: Tony O’Sullivan, Beauchamps Roisin Bennett, Reddy Charlton McKnight Mairead Cashman, Dublin City Council Martin Coleman, Arthur Cox Tom Davy, Mason Hayes & Curran Aine Gleeson, OMGM Ronan McLoughlin, Gallagher Shatter Marissa O’Keeffe, St John Solicitors Kenny McArdle, Byrne Wallace Jackie Buckley, Hayes Solicitors Helen Flynn, Byrne Wallace Aidan Marsh, Beauchamps
Ethna Ryan, Partners At Law Susan Cosgrove, Cosgrove Gaynard Solicitors Sean Greene, Eversheds
Sports Events John P O’Malley, John P O’Malley & Co
Younger Members Committee CO-CHAIRS: Sarah Browne and Ruth Prendeville Laura Horan, MacGeehin Toale John Bollard, DAC Beachcroft Finn Considine, Gartlan Furey Deirdre Farrell, Amorys Eoin O’Cuilleanain, William Fry Jason O’Donnell, Eversheds Christine O’Sullivan, Byrne Wallace Michael Prior, Bailey Homan Smyth McVeigh Solicitors Gavin Bluett, Leman Solicitors Maria Edgeworth, Leman Solicitors
Jane Bourke, Gleeson McGrath Baldwin Robert Upton, Gartlan Furey Niall Sexton, DAC Beachcroft Kathy McDonald, Maples and Calder Sheana Kiernan, Beauchamps Alison Martin, Beauchamps Maeve Naughton, McCann Fitzgerald Niamh Pender, Deloitte Tom Ryan, A&L Goodbody Ruth Donnellan, Arthur Cox Jacinta O’Sullivan, Patrick F O’Reilly
The DSBA Legal Services Act Taskforce CHAIR: Tony O’Sullivan, Beauchamps Áine Hynes, St John Solicitors Robert Ryan, Doherty Ryan Joe O’Malley, Hayes Keith Walsh, Keith Walsh John O’Malley, Avant Card the Parchment 11
09/12/2016 3:22 p.m.
The New Book of Quantum The Book of Quantum was published on 5th October 2016 by the Injuries Board pursuant to the Personal Injuries Assessment Board Act of 2003. Jack O’Brien looks at the various factors that impacted on the relevance of the previous Book of Quantum published in 2004 and provides his view regarding the impact the newly published book will have on valuations and awards of personal injuries in the future
he 2004 Book of Quantum was published on the back of the establishment of the then Personal Injuries Assessment Board in 2003. The Board had been established with a view to reducing particularly, the costs of claims by negating the need for lengthy and costly court litigation involving lawyers and with a view to simplifying and speeding the award of personal injuries damages. This attempted to provide the first “guide” regarding personal injuries as prior to the establishment of the Injuries Board, case law had provided guidance or precedent regarding valuations. The Civil Liability and Courts Act 2004 required judges to “have regard” to the guidelines set down in the Book of Quantum but a subsection allowed the judiciary “to take other matters into account when assessing damages”. The Injuries Board had a difficult start when solicitors acting on behalf of claimants to the Board were ignored, even when accompanied by a revocable authority. The 2005 case of O’Brien –v- The Personal Injuries Assessment Board, confirmed that the Injuries Board in declining to accept the authorisation from a solicitor by corresponding directly with the client was in breach of its own legislation. This was subsequently confirmed by the Supreme Court in 2008. The Injuries Board and by implication the Book of Quantum had a difficult start when it was initially undermined somewhat by Judge Declan Budd in 2005 in the case of McFadden –v- Weir when he stated “I have considerable reservations about the Book of Quantum as so much depends on one’s assessment of the personality of the individual plaintiff and how devastating the effect of the particular injuries have been on such a person with the relevant particular circumstances and character”. Judge Budd was effectively saying that
personal injuries are personal and he found it difficult to reconcile a guide or “pricelist” with the very personal nature of an individual who has sustained such injuries. The Book of Quantum also came into being at an extraordinary time in Irish economic life. It came against the background of the growth in what is often termed the “compensation culture”, plus the lifting (and subsequent restriction) on solicitors advertising together with the growth of the internet, where any query could be googled. It must be remembered the Book of Quantum had been published also against a backdrop of the introduction of the euro currency that arguably had a deflationary impact on damages in 2002-2003. The “economic boom and bust” would have a significant impact on the basis of awards and many practitioners were of the view that the initial Book of Quantum was wrongly calibrated in that it assessed catastrophic damages at 15%-20% less than the courts did. That was significant as catastrophic damages often provide the guide for mid and upper-tier injuries. As the “boom” became a bust there was a view that there was generosity or overvaluation by high court judges in the latter part of the last decade and early part of this one, which created uncertainty throughout the personal injuries market in attempting to value personal injuries cases. As is well documented, recent years have shown the initial Book of Quantum to be utterly irrelevant aside from the initial concerns Judge Budd showed. There is no doubting that position, that aside from any concerns on the principle of a guide for personal injuries that the book had become irrelevant for other reasons. This is well documented in the Obiter
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Winter 2016 dsba.ie Jack O’Brien is a partner with O’Brien Lynam Solicitors
Dicta particularly of Mr Justice Cross in the 2014 McArdle case and Mr Justice Barton in the McGarry case. These criticisms centred on the economic factors around awards and the fact that the 2004 edition had not been updated as initially envisaged. The other significant influences in recent years were the changes to jurisdiction which undoubtedly had an inflationary impact on the awards of damages as they always have, together with an improvement in the economy. Insurers or indemnifiers could feel hard done by the many uncertainties in recent years that all appear to be going against them, aside from the factors above. The Gill –v- Russell case has increased catastrophic damages significantly, the RBA/Social Welfare Legislation has added significant sums to the costs of compensation and the Setanta/MIBI cases in both the High Court and Court of Appeal have added to the uncertain state of affairs. The only possible encouragement has been recent decisions of the Court of Appeal which have significantly reduced awards, particularly from the High Court, since its inception two years ago. The cases of Shannon –v- Sullivan and Cronin –vStephenson have set out specifically the Court of Appeals reasoning for the assessing of damages and have cut general damages where the High Court got same significantly wrong. It was against the above tumultuous events and recent background that the current Book of Quantum was published without any real notice on 6th October 2016. A leading international data analytics provider, Verisk Analytics Limited, apparently collected and analysed 51,000 closed personal injury claims from 2013 and 2014 from court awards, insurance company settlements, State Claims Agency and PIAB data. The aspect to consider is whether the Book will be relevant and will do what is expected of it. To be effective, the valuations must be a threat to plaintiffs and the guiding principles of same must be given due regard by the judiciary. The current Book has attempted to “reflect the reality of the prevailing award levels” as Conor O’Brien of the Personal Injuries Assessment Board noted on publication. It does remain a guide and has revised the clarifications of the severity of injuries from the three categories previously to the current four. There are new categories of injuries, but there are still a number of omissions, notably regarding psychological injuries, scarring and paralysis. Most practitioners will be aware that psychological injuries now form a basis of claim in many personal injuries actions and the bar has been considerably lowered in establishing a psychological trauma in recent years. This has been extended to minors who can often be traumatised and suffer psychological sequelae arising out of what might appear to be minor situations such as false imprisonment. Adults often appear to be psychologically fragile, yet appear to be more robust and without fear when it comes to progressing cases in the circuit or high courts. This is certainly the defence view but plaintiffs’ representatives must have regard to the medical evidence before them. The recently published Book has been referred to
as a “chancers charter” or there have been suggestions that it ought to be “binned” and it is out of sync. Much of these headline-grabbing type comments have been misplaced and either do not reflect minor injury award levels in the Circuit Court or maybe based on a misinterpretation of Court of Appeal decisions. In the latter aspect we note minor whiplash injuries are measured at €4,000 when measured against a “sliding scale” of catastrophic injury levels at €400,000. I cannot agree with that basis, the reality being that nuisance type awards are always priced out of sync (or better value) to serious injury awards. Time will tell how the new Book of Quantum will fare and whether this will stay relevant for a longer period than the initial “pilot” project in 2004. Plaintiff solicitors have told me they will require to have “regard” to this new publication when advising their client’s regarding awards, so certainly it may appear relevant in the short term. In recent years a number of plaintiff practices have highlighted the shortcomings on websites and judicial comment which has been fair and correct advising plaintiffs “how it is” but they will need to reconsider such promotional material. Insurers may be quietly encouraged that there is something of a “pincer movement” between the Court of Appeal reducing damages and the Book of Quantum reducing case proceedings before the courts. The previous Book of Quantum was subjected to a significant number of variables that had nothing to do with the law and it is hoped that the current publication will not be subjected to the same uncertainties. However, it must be remembered that this has been published against one major uncertainty looming in the form of Brexit. Only time will tell how instrumental this Book of Quantum will be. P
Insurers may be quietly encouraged that there is something of a “pincer movement” between the Court of Appeal reducing damages and the Book of Quantum reducing case proceedings before the courts
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09/12/2016 3:23 p.m.
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Winter 2016 dsba.ie Emily Forde s the head of the Lifestyle & Tracing departments and Carla Boyle is the head of the Summons Service departments in the sister companies of Hibernian Legal (International) Limited and Brady & Co (Law Searchers) Limited
Service of Proceedings via Social Media Emily Forde and Carla Boyle examine some recent court decisions on serving elusive individuals by social media
hen it comes to the service of proceedings, elusive individuals are a common burden amongst the profession. Instructing summons servers to call to last known addresses to no avail can be costly, time consuming and frustrating. What if the intended recipient has an active Facebook or LinkedIn account? Can they be served effectively through these social media forums? Whilst the number of cases where electronic service of court documents cannot be described as colossal, social media is increasingly being used as a means of effecting service. Practitioners will be familiar with the general requirements of service. Before making an application to the court for substituted service, the applicant must have made exhaustive attempts to locate the intended recipient. Under the rules of the courts “reasonable attempts” must be made to effect service. Ordinarily in the case of personal service, this is taken to mean three attempts. The majority of applications for substituted service seek to serve by way of pre-paid ordinary post. Practitioners should consider whether service by way of social media would be more apt in particular cases. Such cases may include situations where an intended recipient has moved abroad but an exact address cannot be confirmed or where the intended recipient is living a more transient life. In Moran -V- Busher (2012), Mr Justice Peart granted an order allowing service to be effected via Facebook. It was directed that a copy of the court documents be attached to a private message to the defendant. In their application the plaintiff had effectively demonstrated that several attempts had been made to serve the defendant. The plaintiff set out details of the defendant’s Facebook activity and exhibited his up-to-date profile status to show that he was currently active on the site. Proof of service was demonstrated by exhibiting a copy of the sent message in the affidavit of service. When making an application for service via social media it is vital to demonstrate that a particular social media page does in fact belong to the intended recipient. This can be done by cross referencing
information already known about the intended recipient with the information appearing on the page. If insufficient personal information is disclosed then the plaintiff will run into difficulty in satisfying the court. Serving the wrong person by way of social media does not appear to have arisen to date, but it could very easily happen so care must be taken. The court also requires the applicant to demonstrate that the social media page in question is in active use. Recent posts will easily satisfy this requirement. In some cases persons may disclose their location when posting messages. You should however, be wary of relying on location services as they can be manipulated. In 2014 Ms Justice Bronagh O’ Hanlon allowed a liquidator to serve legal papers via LinkedIn after the subject could not be contacted via the traditional means of service. More recently in July 2016, Ulster Bank Limited made an application for an order to serve Lisa Harrison Botham with a notice of repossession of her home via her private Facebook account after numerous attempts were made to personally serve her at her Dublin address. Details of the latter case were published across a number of news outlets. Service through social media cannot be described as a new development internationally. As far back as 2008 service through Facebook has been recognized in Australia, New Zealand and Canada. Closer to home the courts of England have also allowed such service in a variety of cases most notably in AKO Capital and AKO Masterfund v TFS Derivatives which involved a £1.3 million claim. Twitter has also been used in England in the case of Blaney v Persons Unknown. By no means can social media be viewed as a primary means of service, and parties to proceedings will need to demonstrate that they have made extensive efforts to serve via conventional means, before making such an application. Technological solutions to challenging cases are to be cautiously embraced. Issues will ultimately arise regarding proof of service and endorsement of service. Questions over jurisdiction may also arise. As it stands, service via social media has not been used as the first port of call to date. P the Parchment 15
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Stephen McGuinness is an associate at Hayes Solicitors
The New Book of Quantum - the Start of a Wider Discussion Stephen McGuinness assesses the significance of the new Book of Quantum in the context of how personal injury cases are assessed in England and Wales
If the revised Book of Quantum does start to be used with the same perceived authority and weight as the UK’s JSB guidelines, further scrutiny will need to be given as to how it is compiled and how its revised editions are prepared
he Injuries Board’s revised Book of Quantum was published on 5 October 2016 with greater anticipation about its content than the next instalment of the Star Wars series to be released in cinemas this Christmas. The guidelines are based on an examination of a representative sample of over 51,000 closed personal injuries claims during 2013 and 2014. The analysis included compensation awards for court cases, insurance company settlements, State Claims Agency cases and data relating to awards of the Injuries Board. While many commentators have been asking whether this sequel is worth the hype, there is no doubt that the revised Book of Quantum is a welcome development and it is a well written and researched document.
When Guidance Becomes Rule The Book of Quantum is not an approach unique to this jurisdiction. In 1992 England and Wales saw the publication of the Judicial Studies Board’s Guidelines for the Assessment of General Damages in Personal Injuries cases. These guidelines have been revised on a regular basis and were initially compiled by a working group with the aim of assisting judges and practitioners who deal with personal injury cases. It was hoped that they would facilitate a more uniform approach to the assessment of damages for pain and suffering and loss of amenity. The guidelines represented the first attempt in England and Wales to provide official guidance on the appropriate non-pecuniary sum to be awarded in a form which is simple, clear and easily accessible. All judges within England and Wales are issued with a copy of the guidelines. The guidelines are now heavily relied on by the judiciary and practitioners in England and Wales to the extent that there have been criticisms in some quarters that they have taken on an almost statutory force, due to the high quality of the publication and the care which is given to each new edition. There is an argument that when guidelines have such a significant influence on the assessing of damages not only in the courts, but also in settlement negotiations, that there should be a wider consultation process in their creation. Furthermore a rigid approach rather than ‘guidelines for reference’ is too inflexible and can oversimplify the difficult task that judges have in assessing damages. Guidelines used in tandem with the judge’s scrutiny of the evidence, drawing of conclusions about the nature and extent of relevant injuries and the
impact of those injuries on the life of the plaintiff very much assist in coming to an appropriate award. If the revised Book of Quantum does start to be used with the same perceived authority and weight as the UK’s JSB guidelines, further scrutiny will need to be given as to how it is compiled and how its revised editions are prepared. Already there has been criticism that the revised Book of Quantum relied too heavily on settlements rather than court awards.
Let’s Talk About Damages A wider discussion is needed in relation to the level of damages in this jurisdiction. The revised Book of Quantum garnered some unfair criticism on its release for not opening up this discussion and taking a broader look at damages. In particular, there were criticisms that during the creation of the revised Book of Quantum a comparison did not take place with awards in other jurisdictions. However, it is not within the Injuries Board’s power to benchmark award levels against other countries and this was stressed on the revised Book of Quantum’s release. There is certainly an appetite for a wider discussion on the level of damages to take place and notably the Court of Appeal has reduced the level of damages from the High Court in several cases. An example of this is the case of Nolan v Wirenski (2016) (unreported, Court of Appeal, Irvine J, 25 February 2016), in which the Court of Appeal reduced general damages from €180,000 to €125,000. The Court of Appeal held that damages should be fair to the plaintiff and the defendant; objectively reasonable in light of the common good and social conditions in the State; and proportionate within the scheme of awards for personal injury generally. It is also reported that the government will set up a new commission on personal injury claims in an attempt to bring payouts following road traffic accidents into line with international standards. It is expected this personal injury commission will particularly focus on payouts for soft tissue injuries such as whiplash which have risen substantially in recent years. There is no doubt that the revised Book of Quantum will play an important role in the discussion on damages in this jurisdiction. However, in order for it to avoid the fate of its predecessor, a wider analysis of damages is required outside the confinements of the Injuries Board’s Book of Quantum. Such analysis will be for the benefit of all parties in litigation and will serve the public interest as a whole. P
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Julie Doyle, Keith Walsh, Maura Smith and DSBA President Aine Hynes
Magazine Ireland Awards The DSBA and the Parchment were celebrating at the recent Magazine Ireland Awards (the IMAs) having been shortlisted for awards in four different categories
he awards ceremony took place on 1st December 2016 at Dublin City Hall. Broadcaster and journalist Matt Copper was the host for the evening. The judging panel of Magazines Ireland (the trade association of magazine publishers) shortlisted Stuart Gilhooly (now President of the Law Society) in the highly coveted category of Journalist of the Year (which Stuart won in 2011). The Parchment was shortlisted in the Business to Business Magazine of the Year category following on from last yearâ&#x20AC;&#x2122;s highly coveted win. There were six other magazines shortlisted along with the Parchment so competition was fierce. Editor of the Parchment, John Geary was shortlisted for Editor of the Year among a field of eight nominations. The Parchment was also shortlisted for Cover of the Year competing with a number of leading magazine publications. We extend our sincere congratulations to Mark McDermott, editor of the Law Society Gazette who scooped the Editor of the Year Award. Magazines Ireland represents 38 Irish publishers who together produce over 185 magazines, both consumer and business-to-business titles. P
John Geary, Editor and Kevin Oâ&#x20AC;&#x2122;Higgins
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Andrew Cody lifts the lid on the ‘claim harvesting’ culture that exists in Ireland today and how they operate
p to 8% of the most expensive Adwords from Google relate to personal injury work. It is no wonder that the harvesting of personal injury claims is big business. According to the article on ‘claimsharvesting’ websites published in the January/February 2015 issue of the Law Society Gazette, solicitors who are found to be working in partnership with and/or accepting referrals from claims harvesting websites would be dealt with by the Law Society in a “swift and robust manner”. So who are the claims harvesters and how do they operate? There are about 60 claims harvesting websites in total but in reality. only 10 or so are actively promoted. Some are run by or for solicitors and some are run by opportunistic businesses exploiting the existence of the regulations. There are about 10 solicitors’ firms seriously involved in claims harvesting and about three nonsolicitor firms. Judging by the amount spent on Google the returns must be substantial. The largest wholesaler of claims in Ireland is run by a middle-aged gentleman from his home. His business partner resides abroad where because of similar restrictions where he lives, they operate similar websites harvesting injury claims and divorce proceedings. They have approximately 12 claims harvesting websites including some fake solicitor firms. The company behind these websites was previously prosecuted for selling counterfeit computer programmes many years ago, although they were subsequently acquitted on a technicality. In his Facebook profile the Irish-based gentleman describes himself as being self-employed from
2011 and his occupation is “online and offline sales leads”. He further claims to take ten to 12 legal calls a day. The foreign-based partner is the registered owner of a number of foreign websites, some of which are registered to a property he owns in Ireland. The Irish websites are registered to a company in Toronto, as are the majority of the claims harvesting websites because Canada is very pro-privacy and it is difficult to look behind who is in fact the registered owner. The modus operandi is similar to a lot of other claims harvesting websites in that they provide you with a Dublin number which is diverted to a person paid to answer the phone. You can phone 24 hours a day, seven days a week. This person answers the call, takes down details from the claimant including the circumstances of the accident and advises the claimant that he has the perfect solicitor for him/her who will take the case on a no-win no-fee basis and that either he or an expert solicitor will contact them within the next 24 hours. He appears to have two main customers, one based in Cork and one based in Dublin, although almost certainly has a number of other “customers”. He then telephones his solicitor customer and offers him the claim where the standard fee is €250. If the solicitor agrees to pay that amount, then the claimant’s details including the circumstances of the accident are then passed on to the solicitor. He collects his fees every month or six weeks. Even if he can sell half of the ten or 12 leads he gets per day, he is generating an income in the region of €500,000. The second group of websites are owned and operated by three gentlemen, two of whom are
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Winter 2016 dsba.ie Andrew Cody is a partner at Reidy Stafford Solicitors in Newbridge, Co Kildare. He is also a former council member of the Law Society and is a former chairman of the Complaints and Client Relations Committee
solicitors and one an IT consultant. They have eight claims harvesting websites. However, only two of them are active. The two active websites offer “free online assessment” and style themselves as “the independent service that assesses compensation claims”. They give a fake address in Dublin and a fake phone number so the only way of contacting them is by filling in their online enquiry form which will result in one of their “panel of experts who assess cases on merit and quantum” contacting the claimant. Within 24 hours they receive an email from the solicitor which states that the claimant has been referred to them by the website “due to our experience and reputation”. Within a further 24 hours a solicitor from the same firm will telephone the claimant and will offer to take on the case on a no-win, no-fee basis. They then email several documents including a costs agreement and retainer agreement. Here they say “we will arrange for you to be examined by a consultant who will prepare a medical report”. These websites have been operating for 15 years and have operated through a number of Irish and English companies. Most of the websites are hosted in Salt Lake City on the same server as the websites of the two solicitors and IT consultant. The registered owner of the websites is a limited liability company where one of the solicitors and the IT consultant are directors. It is estimated that these solicitors spend approximately €150,000 per annum on Google Adwords. One company advised a number of solicitors and devised claims harvesting websites before the two partners split and the company was liquidated but they now operate separate businesses based in south County Dublin. Most of these websites are registered in Canada for privacy and hosted in the United States and some remain registered to the former business, which is now in liquidation. They appear to have at least three big solicitor clients and maybe five or six clients. One well known solicitor has ten claims harvesting websites including one registered in his own name. They offer a 24-hour service and the phone will be answered with a generic greeting such as “the solicitors’ helpline, can I help you?”
The people answering the phone are very well trained and will never admit to being from a solicitor’s 0ffice and specifically state that they are not attached to any solicitor but offer a referral service only. They take brief details and within an hour someone from the solicitor’s firm then calls the claimant. This firm is somewhat circumspect in taking on cases and they are equally well trained at denying that the claims harvesting websites have anything to do with their firm. The second customer also owns a well-known personal injury firm which has five websites. The third solicitor has seven websites but for a wide variety of work which includes flight delay claims, bankruptcy advice, defamation claims and also personal injury claims. Then there are the independents who normally have one or maybe two websites. One operates through a company that advertises in the solicitors’ section of the Golden Pages. Frequently it may say that the website is currently “undergoing maintenance” and the online Golden Pages ad says it is a solicitor’s referral service and is based in Limerick. One of the directors lives in a coastal home owned by a Dublin-based solicitor and his wife and the ad pretends that they have offices in many towns but only one specific address is given and that is an apartment registered to the same Dublin-based solicitor and his wife. It is believed that the phone is answered by a Limerick-based gentleman who passes on the details to the Dublin-based solicitor. One other commercial (non-solicitor) firm “provides quality custom generated leads to all sorts of business” and obviously has commercial arrangements with solicitors to sell leads to them. Some websites been shut down by the Law Society but two of those that were shut down have sprung back to life recently. Shortly the responsibility for policing and prosecuting breaches of the advertising regulations will pass from the Law Society to the Legal Services Regulatory Authority. The EU Commission has recently written to the Irish Government advising that the current regulations are “disproportionate and therefore inadmissible under Article 24(2) of Directive 2006/123/EC”. It remains to be seen if Section 218 of the Legal Services Regulation Act survives scrutiny by the EU Commission. P
The people answering the phone are very well trained and will never admit to being from a solicitor’s office and specifically state that they are not attached to any solicitor but offer a referral service only
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Flor McCarthy is managing partner of McCarthy & Co Solicitors and is author of The Solicitor’s Guide to Marketing and Growing a Business: How to Turn Your Legal Practice into a Financial Success, www.thesolicitorsguide.com
What Does Donald Trump’s Victory Mean for Lawyers? Flor McCarthy opines that change can be good, even for Solicitors
s I write this in mid-November we’re just coming to terms with the surprise victory of Donald Trump in the US Presidential Election and it strikes me that there is a very important message for lawyers in his
victory. In fact there are many. On a superficial level, for US lawyers his victory is probably going to mean a field day, one can just imagine the litigation and legal upheaval that will flow from the dramatic changes in direction that he promises. And for Irish lawyers his election may have direct impact too, though perhaps not so positive in terms of FDI and all that it means for business here. And of course, from a marketing perspective you could look at the Trump campaign and point to the lessons that might be learned from it in terms of the successful use of new media to confound the establishment. While his use of the medium is impressive, his message’s consistency and its relationship with fact isn’t one that I would recommend from a content marketing perspective. But to my mind, the really important lesson for lawyers in his election goes much deeper.
Trump won partly because he promised a disenfranchised, white working class that he’d bring back what they’d lost: good secure industrial jobs and thus make America great again. But in this respect, his campaign seems to have been writing cheques that his office can’t cash. The reason that the Appalachian coal mines and rust belt steel mills closed is because they can’t produce anything the world values at a price the market is willing to pay. Promising to reopen them and to restore former glory won’t fix the problem. And this is perhaps the really important core message that we should take from this as lawyers; the world has changed and things are not going back to the way they were. And anyone promising to make things great again is either a fool or a knave. Traditionally small firms have historically been able to make a perfectly comfortable living on a mixture of the three old reliables of conveyancing, probate and personal injury. Add to this a bit of family law, employment, district court criminal work and the odd bit of commercial - and you have the classic small to medium firm general practice.
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Winter 2016 dsba.ie
But that model has a fundamental problem; it’s just not sustainable. Like the good, secure industrial jobs that Trump voters hark back to, the traditional small firm general practice struggles to produce a service that the public wants at a price that the market is willing to pay. The other thing at the core of the Trump phenomenon is economic inequality: the increasing gulf between the minority doing very well and the majority who seem to work harder and harder only to find themselves going backwards. And in the Irish legal market, we see a very similar thing: a small minority of large commercial firms who are going from strength to strength and a large majority of small-to-medium general practice firms of five partners or less with little to differentiate them and who dread the perceived commoditisation of many of the services that they provide as a result. And so the things that many small firm lawyers struggle with - a yearning for the good old days and a wide economic gulf between those at the very top of the profession and the rest - is exactly the type of inequality to which Trump appealed. Yet the solution that he offered - to go back to the way things were - is a fairytale, appealing perhaps but entirely imaginary and never going to materialise in reality. But there is hope. Because while it is true that we in small firm practices face these challenges, it is not the case that we have to rely on the false promise that someone or something else can somehow make things great again. However, we must accept that we’re not in Kansas anymore Toto. The solution is to be found in niches. The small firms
and sole practitioners that consistently thrive and punch above their weight are the ones which position themselves as specialists in a particular niche area of practice and then go about owning the space they have made for themselves. In fact, done properly, this is one way in which sole practitioners and small firms can out perform their counterparts in large commercial firms, by being more nimble and fleet of foot with a much lower cost base. And yet there seems to be resistance to this model from a lot of small firms. When the idea of specialist accreditation was canvassed to the profession it was rejected by many in the small-to-medium firm sector who saw the prospect of specialist accreditation as an unwelcome threat. In time this will come to be seen as a missed opportunity. With the notable exception of babies with full nappies, nobody likes change. However, things are not going back to the way they were and those promising it are only kidding those hoping for it. We can change how we do things and make our legal practices great again and we don’t need any false promises from others to make it happen. But if we want results we have never seen before, we need to be willing to do things we have never done before. Changing how we work from being undifferentiated “me-too” small- and medium-sized general practices, to specialist niche practitioners is one way that we can create a very bright future from self-reliance. Specialists see better demand for their services and provide a higher value proposition which commands a premium in the marketplace. And co-operative, non-competing specialists create that most valuable of things for the lawyer: a mutual referral network for sustainable, long-term business development. P
We can change how we do things and make our legal practices great again and we don’t need any false promises from others to make it happen
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Having excelled as a solicitor Josepha Madigan looks set to play a prominent role in national politics. A prodigious family lawyer, author of a leading text book on family law mediation, prominent DSBA activist and family law committee member, author of saucy fiction, mother of two young boys, holder of a master’s degree in French and German, winner of the Family Lawyer of the Year Award in 2014, partner in a busy legal practice across from the Dail, and now herself a Teachta Dala in the blue of blue, the Fine Gael heartland of Dublin/Rathdown. Here she meets political soulmate Kevin O’Higgins who reveals a woman of considerable substance and appeal
’m meeting Josepha the morning following a glitzy event that I had attended in Airfield House organised by her. Political campaigning costs a lot of money. This had been a post-election fundraiser. Before going to the event I had casually mentioned where I was going to a good friend, Susan Martin, a DSBA Council member. Susan would have had different politics but upon hearing of Josepha’s involvement wanted me to sign her up there and then, tendering a three-figure cheque for the admission. Susan was recollecting an event in her own life several years ago (and long before Josepha’s political calling) when Susan was raising awareness and cash for a particularly heartwrenching cause.
I believe the role both parents have in child rearing needs to be acknowledged. I don’t believe defining a woman by her role in the home is appropriate or fair to either sex
She came across Josepha, (whom she hadn’t known) and upon hearing of the particular plight Josepha, being moved by the cause, immediately wrote a very substantial cheque on the spot. Perhaps it tells a lot of the goodness of spirit and generosity of both women! But back to our heroine. The night before in Airfield had been a particular triumph for Josepha with a full house at the event, elevated by the presence of such political heavy weights as the guest of honour Tánaiste and Minister for Justice, Frances FitzGerald, Leo Varadkar and several of Josepha’s female parliamentarian colleagues from neighbouring constituencies. This was her area. She was amongst her supporters
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Winter 2016 dsba.ie Kevin Oâ&#x20AC;&#x2122;Higgins is a former President of both the DSBA and the Law Society. He is principal of Kevin Oâ&#x20AC;&#x2122;Higgins Solicitors in Blackrock
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I am disappointed that there has not been a greater take-up of collaborative law instruction. This may be because of the rule which means that in the event that the collaborative process does not work out with the process then reverting to the traditional family law scenario then the collaborative solicitors would have to withdraw altogether. I think this is a disadvantage and family, and as I returned to the restaurant in Airfield to meet Josepha the following day it’s clear that she is entirely comfortable and at ease with all around her. It’s obvious that this relative political novice is making her mark. So I asked her how it all happened? In particular, how did the daughter of a Fianna Fáil councillor of longstanding end up as the Fine Gael torch bearer in one of its most hallowed of constituencies – to follow in the footsteps of political luminaries such as the late John Kelly, Nuala Fennell, and of course, Alan Shatter, but also our colleagues Anne Colley, George Lee, Liz O’Donnell, Eithne FitzGerald, the late Seamus Brennan and further back Sean Lemass, Constance Markievicz, and a man who subsequently became our first Chief Justice, Hugh Kennedy. (On a personal note I should also add my own late father Tom O’Higgins to that list, albeit for just the one term, his last in politics!) Josepha qualified in 1997, a year after her brother Patrick. Their late father Paddy, a proud Mayo man, had been in practice in the Raglan Road area for many years. He was a tenacious litigator and having property interests, had successfully challenged the constitutionality of the rent restrictions legislation seeing it struck down by the Supreme Court in Madigan –V- AG (1982 IR 117), holding that parts 11 and 1V of the 1960 Act (which dealt with the control of rents) was unconstitutional. After some legislative fumbling new provisions to control private rented dwellings came into force in 1982. Josepha explains: “When Patrick and I were starting out in law we wanted to put our own stamp on practice particularly as my dad was approaching retirement. We were looking at a rebranding of the family firm. My brother and I had different skills and interests and we decided to start our own practice.” They did so away from leafy Raglan
Road to the more earthy neighbourhood of Kimmage. Having worked hard in building up the practice and establishing her particular speciality in family law, Josepha and her brother sought to relocate again. Their desire was to become more mainstream and a move into the city beckoned. By this stage Josepha had other things on her mind and delegated all responsibility to her brother. “Patrick organised everything. I was in election campaign mode.” Patrick found a suitable premises on Molesworth Street just a stone’s throw from the Dáil. “The premises,” says Josepha, “ just seemed perfect for us but I was hoping that the news of our move to the street with its proximity to Leinster House, wouldn’t leak out before the election in case people might think I was being cocky about my electoral chances – far from it!” But elected she was, securing 16.2% of the first preference vote and ending up with 9,488 votes. She acknowledges that were it not for gender quotas she may not have even made it on to the ticket, as in her case the directive was one male, one female – so it would have worked to her advantage on the night. Although her party would have had hopes of garnering two of the three seats this was not to be, and so Josepha was to be become the sole flag bearer for her party. This meant that her constituency colleague Alan Shatter lost out. “I was very sorry to see Alan squeezed out. He was a hugely reforming parliamentarian over many decades and carried through substantial reform over his tenure as Minister for Justice.” The irony of one Dublin solicitor replacing another, one iconic family lawyer making way for another, a woman with considerable family law acumen too, one salacious fiction writer slotting in for the other although in Josepha’s case her book, Negligent Behaviour did not face the wrath of the Censor as was
the case with Mr Shatter’s Laura. A further irony was that it had been the then Minister Shatter who had launched Josepha’s book, Appropriate Dispute Resolution in Ireland at the Mansion House in 2012 when Josepha, although involved as a mere party activist, would not have been on Minister Shatter’s political radar. Josepha’s eureka moment about entry into political activity had come about a few years earlier in the midst of the arrival of the Troika and the national malaise unfolding nightly on our television screens. Her background was Fianna Fáil, although she had not been a member but her father Paddy had been a Fianna Fáil councillor for the Blackrock ward for many years. A Haughey loyalist, he subsequently fell out with his successor, Albert Reynolds over property tax when he left the party and became an independent. “I was sickened by the poor political decision making being made at the time, but rather than rant, I decided to do something about it.” She got involved in her local Fine Gael branch and helped out Olivia Mitchell, the longstanding TD. She soon found herself chair of the branch, was encouraged to stand in the Locals Elections in 2013 for the Stillorgan ward, caused quite a stir by her opposition to a halting site on the Taney Road (although she would reject her position as being anti–traveller). She was comfortably elected which then gave her a pathway to the Dáil in the recent election. She got involved in politics for the right reasons, to make a positive change in people’s lives for the better. She feels immensely privileged to now find herself as a legislator and feels that lawyers have particular advantages and the perfect skill set. Josepha has taken a public position on the rebalancing she feels is necessary on matters such as fairness to fathers in access and related issues. Society has changed and child rearing is no longer the preserve of the mother. “Many marriages stayed intact due to societal pressures, but over time family breakdown became more common and less stigmatised. In such cases it became usual that children of divorced or separated parents mainly resided with the mother. This fact influenced how the court apportioned the family home and maintenance. This has led to a perception among many fathers that they get a raw deal in the family courts. I believe the role both parents have in child rearing needs to be acknowledged. I don’t believe defining a woman by her role in the home is appropriate or fair to either sex. We
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Winter 2016 dsba.ie
Photography: Bryan Meade
are moving away from presuming a mother is the only child rearer, the father the breadwinner – or that in a breakdown the mother should automatically be the main carer. Increasingly, courts are listening to children and increasingly, co-parenting post separation is being considered.” As you might expect she feels that the Children and Family Relationships Act 2015 is pioneering legislation that will tackle a myriad of issues such as breaches of access and guardianship. She is pleased with the final passage of the Legal Services Regulation Act and like many colleagues, welcomes the new forms of practice models envisaged by the legislation but has concerns that the costs for practitioners might increase and will have to be carefully monitored by the Law Society. Josepha has a huge interest in mediation and very much hopes for the eventual passage of the Mediation Bill. While a mediator herself she has also done a certain amount of collaborative law. “I am disappointed that there has not been a greater take-up of collaborative law instruction. This may be because of the rule which means that in the event that the collaborative process does not work out with the process then reverting to the traditional family law scenario, then the collaborative solicitors would have to withdraw altogether. I think this is a disadvantage.” Josepha is also concerned to amend our divorce laws as she feels that the four-year duration is excessive. In July she introduced a private members bill with the support of both the Minister for Justice and the Taoiseach. If passed, it would pave the way for a referendum to reduce the waiting time for a divorce. “There are too many separated couples who cannot extricate themselves from each other within a reasonable time limit. The Bill is simple common sense.” I ask her about her other constituency colleague Shane Ross, a minister very much in the wars, a possible Achilles heel for the Government and someone whom some commentators feel ought to be sacked. However, on this subject she is less forthcoming. She is concerned however, that Ross appears to have put himself in a hole in relation to his self-proclaimed embargo on the appointment of judges pending “his” legislation. She agrees that the administration of justice cannot be held up or delayed by the insufficiency of judges and notes the strong reaction from both the judiciary, political commentators and editorial writers as well as a previous
Josepha Madigan at a glance
FAVOURITE MOVIE The Shawshank Redemption (predictable!) FAVOURITE BAND U2 READING RIGHT NOW The Girls by Emma Cline GREATEST INFLUENCE ON LEGAL CAREER My dad
Minister for Justice, Michael McDowell, who has commented that the situation is untenable and a catastrophe waiting to happen. I also ask how long Enda will last. She is effusive in her support for him saying that he’s the right man for such a critical position at the moment and would want him entirely to go at a time of his own choosing. But how does she find the time and energy to be a wife to hubby Finbar (an advertising executive and personal trainer), mother to Daniel and Luke, practising solicitor and now
a national politician? If that was not enough however, she has already the book of risqué fiction behind her and because it recounts the exploits of a young female Dublin solicitor in a big firm??. She laughs and reiterates that it was pure fiction, her form of escapism which she finds writing gives her. In fact she has another book on the go at the moment. Hectic political life, busy legal practice, children, personal trainer husband, book on the go-how does she find the time! P the Parchment 27
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Law Book Awards 2016 One of the many joys that December brings is the news of the nominations for the DSBA Law Book of the Year Awards. This is the fourth year of the Awards and so far we have been privileged with the quality of the books entered. This year is no different. This year’s judging panel will announce a shortlist of books which will appear in the Spring Parchment. We would like to sincerely thank our sponsors Byrne Wallace Solicitors, Peter Fitzpatrick & Co. Legal Costs Accountants and Law Society Skillnets. The President and Council of the DSBA have supported this event from the
start and a huge amount of unacknowledged work is done by the DSBA President and council on this, as well as other events. The purpose of the DSBA Law Book Awards is to highlight for practitioners the new law books appearing every year and to recognise the authors. Without these authors, who contribute so much of their time and energy to producing these books, our work as practitioners would be made more difficult and we owe them, and their publishers, a debt of thanks. The DSBA Law Book Awards is one small repayment towards this debt and we hope you will
By Keith Walsh
support the authors by purchasing one of their useful and practical volumes or perhaps even joining them by becoming a published author. We are delighted this year to see the return of Bloomsbury Professional, long a stalwart contributor of authors work to this event as well as the new kids on the block – Clarus Press, Penguin, Four Courts Press and Blackhall Publishing. This year’s line up is one of the strongest for many years with a variety of academic and practical volumesCongratulations to all the nominated authors and publishers.
Nominees for DSBA Irish Law Book of the Year
The Supreme Court Ruadhan Mac Cormaic, Penguin, €27.99
INTELLECTUAL PROPERTY LAW IN I RELAND
Children and Family Relationships Law in Ireland: Practice and Procedure Dr Geoffrey Shannon, Clarus Press, €149
COLOUR VISUAL CLOTH COLOUR: AQUA BLUE FOILING: SILVER
Fourth Edition Third Edition
ROBERT CLARK SHANE SMYTH NIAMH H ALL
Intellectual Property Law in Ireland, 4th Edition Robert Clark, Shane Smyth, Niamh Hall, Bloomsbury Professional, €245
THE LAW OF COMPANIES
CLARK SMYTH HALL
CLOTH COLOUR: WEAVER
M EDICINE , ETHICS AND THE L AW
INTELLECTUAL PROPERTY LAW IN IRELAND Fourth Edition
The Politics of Judicial Selection in Ireland Jennifer Carroll MacNeill, Four Courts Press, €55
MEDICINE , ETHICS AND THE LAW
COLOUR VISUAL CLOTH COLOUR: IVY
DEIRDRE M ADDEN
Trade Marks Law, 2nd Edition Glen Gibbons, Clarus Press, €149
THE LAW OF COMPANIES
THOMAS B. COURTNEY
Guardian of the Treaty:The Privy Council Appeal and Irish Sovereignty Thomas Mohr, Four Courts Press, €50
Medicine, Ethics and the Law, 3rd Edition Deirdre Madden, Four Courts Press, €195
The Law of Companies 4th Edition Thomas B Courtney, Bloomsbury Professional, €275
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Winter 2016 dsba.ie
Annual Book Awards
cloth colour: REGAL foiling: GOLD
JUDICIAL REVIEW AND
CLOTH COLOUR: PETROL FOILING: SILVER
Farming and the Law is a unique publication offering a comprehensive overview of many of the legal issues that farmers encounter in what has become an increasingly complex and regulated environment.
The author, Karen Walsh, has written this book with the lay-person in mind in a bid to demystify and decipher the often incomprehensible jargon associated with the law as it relates to farming and to help inform farmers and landowners for decisions that they make every day. Contents include:
G BRIAN HUTCHINSON
Farming and the Law is an essential book for all farmers, persons working in or around farms,
farming agencies and support organisations, solicitors, barristers, and anyone interested in the legal issues that affect farming.
About the Author
M ARK DE BLACAM
Karen Walsh is from a farming background and is a solicitor with Walsh and Partners, specialising in agricultural law, land law and renewable energy. She has offices in Cork and Dublin.
BARCODE TO BE ADDED HERE
Keane on Company Law 5th Edition G Brian Hutchinson, Bloomsbury Professional, €195
Design by email@example.com
KA R E N WA L S H
• Animals and the Law • The Law on Shrubs, Trees, Hedges, Drainage and Public Roads • Collaborative Farming • Family Law and the Farm • Planning Law • Employment Law • Health and Safety on the Farm
• Property Law • Defending your Dwelling • Occupier’s Liability • Transferring the Family Farm • Wills, Administering an Estate and Enduring Powers of Attorney • Land Leasing • Solar Farms and Wind Farms
The law can be an intimidating topic and many farmers can feel overwhelmed and increasingly encumbered by legal requirements and the implications for the decisions they make in the running of their farms.
KA R E N WA L S H
JUDICIAL R EVIEW
K EANE ON COMPANY LAW
KEANE ON COMPANY LAW
Judicial Review 4th Edition Bloomsbury Professional, €265
Farming and the Law Karen Walsh, Clarus Press, €35
Nominees for DSBA Practical Irish Law Book of the Year
• Land and Conveyancing Law Reform Act 2009
• Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 • Civil Law (Miscellaneous Provisions) Act 2011 • Children and Family Relationships Act 2015 • Marriage Act 2015
• Gender Recognition Act 2016 This comprehensive collection of legislation is indispensable for both family law practitioners and students. Deirdre Kennedy and Elizabeth Maguire are both practising barristers.
by numerous case examples along with practical udes an appendix containing sample precedents. Negligence Litigation features a foreword by Kechnie of the Supreme Court.
actising solicitor for the past 35 years and has riod in the area of medical negligence law. He ecialisation in birth injury and catastrophic injury he largest niche practice in the country, Augustus r patients/plaintiffs who have suffered medical e has acted in many of the landmark Irish legal ny of which are covered in the text of the book.
Part 1: General Family Statutes: Guardianship of Infants Act 1964; Maintenance Orders Act 1974; Family Law (Maintenance of Spouses and Children) Act 1976; Family Home Protection Act 1976; Family Law Act 1981; Domicile and Recognition of Foreign Divorces Act 1986; Status of Children Act 1987; Family Law Act 1988; Judicial Separation and Family Law Reform Act 1989; Family Law Act 1995; Domestic Violence Act 1996; Family Law (Divorce) Act 1996; Family Law (Miscellaneous Provisions) Act 1997; Land and Conveyancing Law Reform Act 2009, Part 7; Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010; Children and Family Relationships Act 2015.
DICTIONARY OF IRISH LAW
• Order 59A of the Circuit Court Rules 2001
• Orders 70A and 70B of the Rules of the Superior Courts
MURDOCH AND HUNT’S
Negligence Litigation provides comprehensive uch claims from the taking of first instructions
A Practical Guide to Medical Negligence Litigation
The Irish Family Law Handbook brings together in one volume all the essential family law statutes and rules of court, fully amended. Now in its fifth edition, it is brought fully up to date to take account of the following:
Irish Family Law Handbook
elp and guidance in how to confront and solve ues which arise in the successful prosecution of a
A Practical Guide to Medical Negligence Litigation
regarded as one of the most complex, emotive of tort litigation. This handbook provides legal on of the key legal principles which underpin and cal negligence litigation.
Irish Family Law Handbook
Part 4: Miscellaneous: Bunreacht na hÉireann 1937, Arts 41, 42, 42A.
Boylan Michael Boylan
CLOTH COLOUR: TANGERINE FOILING: GOLD
Part 2: Court Rules: Circuit Court Rules 2001, Ords 59, 59A; Rules of the Superior Courts, Ords 70, 70A, 70B. Part 3: European Union Legislation: Council Regulation (EC) No 2201/2003.
MURDOCH AND HUNT’S
Fifth Edition Kennedy & Maguire
DICTIONARY OF IRISH LAW
Kennedy & Maguire
Cover image © wundervisuals/istock ISBN 978-1-78451-587-4 also available from Bloomsbury Professional
9 781784 515874
90100 also available from Bloomsbury Professional
A Practical Guide to Medical Negligence Litigation Michael Boylan, Bloomsbury Professional, €195
Irish Family Law Handbook 5th Edition Deirdre Kennedy, Elizabeth Maguire, Bloomsbury Professional, €175
Legal Research Methods: Principles and Practicalities Laura Cahillane, Jennifer Schweppe, Clarus Press, €35
Legal Cases that Changed Ireland Ivana Bacik and Mary Rogan, Clarus Press, €20
Murdoch’s Dictionary of Irish Law and Finance in Law, 6th Edition Retirement Brian Hunt, Bloomsbury 3rd Edition Professional, €165 Blackhall Publishing, €20
The Modern Family: Relationships and the Law Tim Bracken, Clarus Press, €35
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The Garnishee Option Most legal practitioners specialising in debt recovery are familiar with the various enforcement options available to a creditor who has obtained judgment in the courts against a debtor. James Seymour assesses this useful option for clients and says that it is surprising that many practitioners do not fully examine all options of enforcement and in particular, the garnishee application. The article deals with non-maintenance judgment debts only
It is ironic that many debtors were themselves in difficulty as a result of a third party failing to discharge debts owed to the judgement debtor
t is commonplace in the debt recovery sector to conduct a property/folio search against a debtor and indeed to examine the income and expenditure and/or assets of a debtor but often, practitioners fail to look at the debtor from a garnishee application position. Given the difficult economic climate that we have all endured for the last number of years, enforcing judgments was a challenging task as many judgment debtors were hopelessly insolvent. It is ironic that many debtors were themselves in difficulty as a result of a third party failing to discharge debts owed to the judgment debtor.
Garnishment – what is it? Garnishment or an order of garnishee or an order of attachment of debt by garnishee is an order of the court for collecting a monetary judgment on behalf of the judgment creditor from a debtor subject of the judgment. The money can come directly from the defendant (the debtor) or from a third party (the garnishee).
How to Apply Most applications for an order of garnishee are brought before the Circuit Court. Accordingly we will first consider the procedure before the Circuit Court where an application for an order of garnishee is governed by Order 38 of the Circuit Court rules.
The application is generally brought by way of an ex parte application before the county registrar in the circuit where the judgment debtor and/or the garnishee reside. The application must be grounded upon an affidavit sworn either by the solicitor on behalf of the judgment creditor or by the judgment creditor themselves. It is essential that the affidavit confirms the following facts: (a) There is a judgment for the recovery of a specific sum of money currently enforceable and a copy of the judgment/order should be exhibited. (b) That the judgment remains unsatisfied despite demands being made of the judgment debtor. (c) That there is, within the jurisdiction of the court, a third party (the proposed garnishee) who owes a specific sum of money to the judgment debtor and that the money owed by the third party is not charged to any other party. If there is documentary evidence of the debt owed by the third party to the judgment debtor, then that document or documents should also be exhibited. (d) That there is little prospect of enforcing the judgment through the normal execution process. The county registrar will, if satisfied with the application, make a conditional order against the third party (now referred to as “a garnishee”) and will direct as to how the garnishee is to be notified of the making of the conditional order. Once the making of the order
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Winter 2016 dsba.ie James Seymour is a partner at Berwick Solicitors Dublin & Galway and provides debt recovery services. He is president of the Galway Solicitors’ Bar Association
has been notified to the garnishee, then the debt owed by him/her to the judgment debtor is bound in his hands and cannot now be released to any other party including the judgment debtor. It is also good practice to notify the judgement debtor of the making of the conditional order though it is not essential. The matter will then be adjourned to a new return date to allow the garnishee to appear before the court to show cause as to why the garnishee should not pay the monies owed by him to the judgment debtor, now to the judgment creditor. If the garnishee is contesting the application, then the matter must go before the judge of the Circuit Court as the county registrar only has the power to make a conditional order of garnishee and an absolute order where the application is consented to or is unopposed. When the matter comes back before the court where it is being contested by the garnishee, if the garnishee satisfies the court that the monies owed by the garnishee are owed to a third party, then the court has discretion to compel that third party to appear and set out its position. The court has discretion as to whether the entire amount owed by the garnishee to the judgment debtor should be caught by the order of garnishee.
After the Order is Granted Once the conditional order of garnishee is made
absolute, then it is open to the judgment creditor to pursue the garnishee as if the garnishee was the judgment debtor. The writer was involved in a case where the garnishee was a local authority which consented to the making of the absolute order but then refused to pay on foot of the order. The writer then registered the judgment as a mortgage on the local authority’s lands including a town hall and then threatened well charging proceedings! Thankfully payment ensued shortly thereafter.
Be Prepared! If you are asked to enforce a judgment against a debtor, take detailed instructions not only as to the assets of the debtor but also in relation to whether the debtor has himself or herself, any debtors, or whether the debtor is in receipt of periodic payments such grants/subsidies, medical card payments, rents, royalties or stipends.
A Case to Note It has been argued in some recent cases that an award for legal costs can be the subject of an application for an order of garnishee. It is essential that practitioners familiarise themselves with the law relating to legal costs and solicitor’s liens as set out in the case of Galway City Council –v- QDM Capital Limited ( IEHC 171) and in particular the provisions of the Legal Practitioners (Ireland) Act 1876. P
It is ironic that many debtors were themselves in difficulty as a result of a third party failing to discharge debts owed to the judgment debtor
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Dwelling House Relief A CAT exemption is available under s. 86 of the Capital Acquisition Tax Consolidation Act 2003 (CATCA 03) for a person’s family home, provided certain conditions are met. Committee stage amendments to the Finance Bill 2016 propose changes to the dwelling house relief legislation. Finola O’Hanlon says the main changes are that the relief will in general, only be available on inheritances and in cases where the disponer was living in the property on the date of the disponer’s death
What is a Dwelling? A dwelling is defined as “any building or part . . . of a building, . . . used or .. suitable for use as a dwelling” and includes grounds of up to 0.4047 hectares (circa one acre) occupied and enjoyed with the dwelling. Where the property is larger than one acre the part of the garden or grounds which is most suitable for occupation or use with the dwelling, will qualify for relief. A dwelling house can refer to a house or an apartment and can consist of several parts.
Conditions for Relief The Finance Bill 2016 proposes to replace the existing version of S. 86 CATCA03 which would largely confine the relief to inheritances of shared houses. Under the new legislation the following conditions must be met for CAT dwelling-house relief to apply: 1. Relief is available on the inheritance of a ‘relevant dwelling house’ – i.e. a dwelling house that was occupied by the disponer as his only or main residence at the date of his death. 2. The beneficiary cannot be beneficially entitled to an interest in any other dwelling at the date of the inheritance. 32 the Parchment
3. The beneficiary must have occupied the dwelling continuously as his or her only or main residence throughout the period of three years up to the date of the inheritance. If the dwelling has been replaced during this three-year period, then 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. 4. 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 65 years (replacing the current age threshold of 55 years) at the date of the inheritance. The Finance Bill 2016 proposes a new provision to cater for cases in which the donor or beneficiary has moved out of the house (prior to taking the benefit) because of his mental or physical infirmity. The beneficiary will be deemed to continue to occupy the property during any period when he is out of the property due to mental or physical infirmity. Example: Jean and Kathleen O’Leary are sisters in their late
Winter 2016 dsba.ie Finola O’Hanlon is a tax practitioner and principal of O’Hanlon Tax Ltd
80s who have lived together in the family home they inherited from their parents since 1985. The property is held as tenants in common. Jean is losing capacity and needs a good deal of care from her sister Kathleen. When Kathleen falls and fractures her hip Jean, who cannot live alone, needs to move into a nursing home. Kathleen contracts an infection during her convalescence and dies two months after the hip operation and Jean inherits all of her assets under her will. She does not own or inherit any interest in another dwelling house and she has lived in the family home all her life. If Jean took the inheritance prior to the Finance Bill 2016 provisions taking effect, dwelling house relief would not be available to Jean as she was not living in the house in the three years up to the date of inheritance due to her two months in the nursing home. If the inheritance is taken after the Finance Bill 2016 provisions take effect, Jean can count her period of residence in the nursing home as a period of occupation of the family home.
Owning More Than One Dwelling A beneficiary cannot have a beneficial interest in more than one dwelling house if he is to qualify for relief. A residential property that is abroad (such as a foreign holiday home), or rented (such as an investment apartment) will prevent relief applying. The beneficiary is not precluded from acquiring other dwellings after the benefit is received. If the residue of an estate includes another dwelling inherited at the same time, the beneficiary has an interest in two dwellings at the date of inheritance and relief will not be available. An Appeal Commissioner decision which indicated to the contrary was reversed by the unreported Circuit Court case of Knapp v Revenue Commissioners AC 191/07, 12 January 2010. The position has been clarified by the Finance Bill 2016 as the proposed legislation provides that it does not matter whether the second property is one which the beneficiary was entitled to before the date of the inheritance, or whether the property passes by virtue of the inheritance. Care should be taken where a property is divided into separate parts (for example a house with a granny flat or a mews at the back). The relief on the main property will be jeopardised if the other unit is not part of the same dwelling.
Gifts to Dependant Relatives The Finance Bill 2016 proposes a new dependant relative provision which allows dwelling house relief on a gift of a dwelling house to a dependant relative. A ‘relative’ is a lineal ancestor, lineal descendant, brother, sister, uncle, aunt, niece or nephew of the disponer or his spouse or civil partner. A dependant relative is defined as an individual aged 65 years or over, or permanently and totally incapacitated by reason of mental or physical infirmity from maintaining himself or herself. A dependant relative who takes a gift of a dwelling house is deemed to take it as an inheritance at the date of the gift and the condition in S. 86(2)(a) (that the dwelling house must be occupied by the disponer as his only or main residence at the date of his death) does not apply.
Clawback of Relief The beneficiary must continue to own and occupy the dwelling house as his only/main residence throughout
the relevant period of six years following the date of the benefit. If the dwelling is sold within the six-year period the exemption will be clawed back. However, a beneficiary can replace the property during the six-year retention period without losing the exemption. The original and replacement properties must be occupied as the beneficiary’s only or main residence for at least six out of seven years commencing on the date of gift or inheritance. The Finance Bill 2016 proposes that the clawback condition will not apply if: • The beneficiary was over the age of 65 years (previously 55 years) at the date of the gift or inheritance, • The sale or disposal, or non-occupation of the house occurs because the beneficiary needs long-term medical care in a hospital or nursing home, or • The house is not occupied because an employer requires him to live somewhere else or because he is working abroad. The Finance Bill 2016 also clarifies how the clawback will be calculated on a partial reinvestment. If all the sales proceeds are not reinvested there will be a clawback of part of the original relief granted, in proportion to the amount of the sale proceeds that is not re-invested.
Conclusion The proposed legislation does not specify when the new section takes effect. Anti-avoidance measures contained in committee stage amendments will usually take effect from the date of the passing of the Act if an earlier commencement date is not specified in the legislation. However, the position will not be clearcut until the new legislation is enacted. The commentary above is based on the committee stage of the Finance Bill 2016. The section may be amended before the Bill is enacted and practitioners should refer to the provision in the enacted legislation when giving advice. P
The Finance Bill 2016 proposes a new dependant relative provision which allows dwelling house relief on a gift of a dwelling house to a dependant relative
Overview of Changes in Finance Bill 2016 The key changes are as follows: • The relief is only available for inheritances. • Relief will not generally be available for gifts, or gifts which convert to inheritances due to the death of the disponer within two years. • Dwelling house relief will be available on a gift which is made to a dependant relative. • Generally the house must be occupied by both the disponer and the beneficiary on the date of the inheritance (this requirement is waived for a gift to a dependant relative). • There is a new deemed occupation provision that applies giving deemed occupation if a donor or beneficiary is out of occupation due to mental or physical infirmity. This must be certified by a medical practitioner when seeking to avoid a clawback. • The age at which a beneficiary can take a property without being subject to clawback provisions has been increased from 55 years to 65 years.
the Parchment 33
Your IT Security Reviewed In light of the growing cyber attacks and in particular, those specifically directed towards law firms, Greg Ryan examines the risks and proposes some solutions
hree out of every ten solicitors’ practices have been subjected to a cyber attack in the last 12 months in the UK, while 38% of the country’s top 20 firms have been the target of attacks. Over half of the security breaches were caused by malware while 35% involved ransomware where the hackers block access to the computer systems until a sum of money is paid. While the exact numbers are not available for Irish firms, a British professional indemnity insurer has reported that approximately Stg£85m was stolen from client accounts in the UK in the last 18 months. Quite apart from the risk to the client account monies, the requirement for solicitors to keep confidential their communications with their clients whether expressed in terms of an obligation of professional secrecy or alternatively, legal professional privilege is an essential component of the rule of law. There is an increasing imperative on solicitors to acquire those skills that may be necessary to ensure the protection of confidential client information in the virtual online environment. Investment in IT security systems, protection tools and encryption tools are necessary for lawyers, but are not of themselves sufficient without a good working knowledge by the solicitor of the environment in which those tools are to operate. For example, it is pointless to use tools of encryption if the attacker has gained control of an end point, which is where decryption takes place and the storing of information in unencrypted form. A certain level of minimum knowledge of IT security is an important basic skill for us all. You cannot delegate everything to your technical experts! In order to develop a basic information security system, the solicitor should start by identifying the key information assets especially client information and documents, account information and so forth that are critical to the operation of the firm. Based on the identification of those assets the firm should then identify the security failures that would have the most severe impact on the business of the practice and identify what kind of options it has for the minimisation of such risks. Such options should cover at a minimum the following aspects:
• Controlling access to key information assets including identifying and restricting the users of the systems • Defining physical security areas with controls • Secure disposal and removal of equipment including mobile devices and off premises security • Network security including wireless and wired networks • Operational procedures to ensure protection against malicious code • Management of passwords, back-up reporting, security incidents, etc. One particular aspect of the risk analysis called for above is the special risk attendant in the use of mobile devices. Laptops, tablets and mobile phones can simply be lost. If an attacker were to get hold of one of any of these devices he would be able to launch a very wide range of security attacks. Mobile devices quite simply put, require more security controls than devices kept in the office. It is not absolutely necessary to encrypt storage in the desktop environment but for laptops it is certainly required. This also applies to all mobile devices including mobile phones, USB flash drives and any other method of export data from the office. Additional physical protection measures may require to be implemented. For example, the use of a pocket size lock or other secure restraint device in order to secure the device itself. Anti-virus and anti-malware software needs to be implemented on all devices and kept up to date. Solicitors must be aware that it will not grant protection against all attacks. Detection rates for some of the more popular anti-virus software is over 99% but it is only achieved by defending against malware already identified and analysed by those companies. However, there will be a time lapse between a piece of malware appearing in the marketplace and its registration in anti-virus software and a general strategy by the bad guys of targeted attacks to exploit vulnerabilities which have not yet been addressed. These vulnerabilities are known as zero day vulnerabilities. Since client data is one of the most valuable assets that we hold, this must be protected even after the data is no longer needed. Erasure or destruction of the
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Winter 2016 dsba.ie Greg Ryan is principal of Greg Ryan Solicitors. He is treasurer of the DSBA
data has to be secure as well. Both data storage devices, flash drives and hard drives and also built-in media store the client data. This has to be kept in mind when these devices are made available for servicing or disposing or selling them when no longer needed. Data is not only stored by computers, tablets and smart machines but also by your photocopier, scanners and fax machines. Simply deleting the data or formatting the device will not stop a determined person from restoring it, so either a special deletion mechanism should be used or such data carriers should not be disposed of at all. One possible solution to guard against surveillance or the interception of data is the use of encryption. Even some of the end user providers which provide end-to-end encryption are not without a “legal back door” for Government agencies to access. Big Brother, particularly in the US is watching you. Certain web communication devices such as Whatsapp have now provided a default option for their services to provide end-to-end encryption. When using a software only end-to-end encryption, the conversation can still be prone to attacks at the level of the operating system or the software environment running on the device, e.g. android or iOS. As stated above even end-to-end encryption may be useless if the attacker has access to the end user device itself. The greatest risks are software vulnerabilities, i.e. errors not fixed in some elements of the environment used on the device such as apps not updated, or ignored by their creators. Malware (viruses or worms etc.) present on the device can also grant the same unauthorised access to attackers. This malware could be installed accidently including through malicious websites accessed on the device. WiFi networks provide a particular risk. Although the use of WiFi networks is now widespread, care must be taken when using these for access. In general, WiFi is not suitable for professional use involving confidential information unless there is an extra security layer of end-to-end encryption similar to that employed when using VPNs. Without such an extra layer, a solicitor should not use WiFi without the most basic access controls for sending client information. If such
precautions are not taken, anyone in the vicinity can view and record complete traffic data. Furthermore, just because a network is protected by a password, that alone will not make it more secure than “open WiFi networks”. Reliable and secure authentication of guest users is somewhat complicated and because of that, very rare. The safest solution is to establish a VPN network connection between the mobile device and the office or another sensitive mobile IT resource. Sole practitioners and smaller law firms particularly in serviced offices should keep in mind that if they use a wired network provided by their landlord, they should verify with their landlord whether the Local Access Network (LANS) of each tenant is securely separated from each other. If the other office users can access the law firm’s computers, then those files are at considerable risk. Email has its own challenges too. Email messages can be recorded in a number of ways either by the provider of the LANS, at the sender’s or recipient’s site, the sender’s or recipient’s internet access provider, by the provider who grants access to the emails, or by the one who relays the emails sent to the recipient. An email goes through a minimum of seven servers between sender and recipient. More and more often the connection between the email service provider and the local client is secured by SSL encryption. However, that does not necessarily mean that when the provider forwards the message, that it will stay encrypted. The large number of email service providers and their different configuration make standard SSL encryption almost impossible to implement. In conclusion, absolute protection of IT systems against surveillance, lawful or otherwise, and against other forms of hacking cannot be achieved. IT systems will always be vulnerable but there are a wide range of security steps which lawyers can take to try and protect the data that they hold and communications between lawyers and clients. We need to demonstrate to our clients not that IT security breaches can be wholly prevented, but rather that we have thought about and addressed the issues and taken such countermeasures as may be appropriate. P
Simply deleting the data or formatting the device will not stop a determined person from restoring it, so either a special deletion mechanism should be used or such data carriers should not be disposed of at all
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Champion of the Cause Darragh Mackin is a solicitor with Belfast firm, KRW Law and currently forging an impressive career on the international legal scene. The firm is highly ranked by chambers and partners for their expertise in public law and criminal practice. Darragh practises in human rights and at the age of 25, is the recipient of Legal Aid Newcomer of the Year at a recent awards ceremony in London. Darragh recently spoke to Julie Doyle on his career highlights to date
Congratulations on your recent award win as Legal Aid Newcomer of the Year. Can you tell us a little about what led you to choose a career in law? Where did you serve your apprenticeship and when did you qualify? I began my legal career, in KRW Law LLP (then Kevin R Winters & Co) in May 2011 when I embarked on a one-week work experience. That one week of work experience ultimately lead to a five-year career varying from part-time paralegal to trainee, to solicitor (2014) and eventually to associate (2015). You work primarily defending human rights and have been described by your firm’s co-founder Kevin Winters as having a “terrier like tenacity in chasing down complex legal issues”. What drives you when you are running a case? As a solicitor I feel that there is an ever-increasing habit for solicitors to view ourselves as inferior to barristers. Perhaps it is tradition, perhaps it is laziness. I am against this concept in its entirety. It is that concept that has driven me to ensure that when preparing a case, we as solicitors are hands on; involved and engaged at every level of case preparation. We all play a pivotal part, from clerks to senior counsel and our clients depend on us to each utilise the skills we all
possess. It is when these skills are utilised collectively that a team is at its most effective. It is this team spirit that has become part of preparation that makes tenacity contagious. You are currently working on a number of high profile cases. Can you tell us a little about the work you are doing for the Hooded Men, the 14 Catholics who say they were tortured by the security forces during internment in 1971. How is the investigation progressing? The ‘Hooded Men’ case is a case with many dimensions. It effectively started out with our clients taking it upon themselves to try and correct the injustice, that is, the Ireland v UK (1978) case in which it found that the deep interrogation techniques to which they were subjected, did not amount to torture. As part of the strategy in trying to ensure our clients stood the best possible chance of rewriting the original verdict, we initiated a two-pronged legal challenge. Firstly, we challenged (in Dublin) the failure by the Irish Government in light of the fresh evidence, to refuse to reopen the case against the United Kingdom before the European Court. And secondly we challenged (in Belfast) the failure by the UK to investigate the allegations which we
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Winter 2016 dsba.ie Julie Doyle is an associate solicitor at Beachamps. She is a member of the Parchment committee
say is further exacerbated by the fresh evidence. This two-pronged challenge has resulted in the case being reopened by the Irish Government before the European Court of Human Rights, in which our clients have applied for “Interveners Status”. Further, the challenge in Belfast has resulted in additional material being disclosed, which we are relying on in support of our clients’ argument that the European Court at the time of the original case was misled. You have sought the backing of the Irish Government in order to have the European Court of Human Rights declare that the men were tortured. Was this a long process and how did you achieve this? In short, we provided the Irish Government with the papers that we say undermined the original verdict, and in turn substantiated our case that the European Court was originally misled in relation to certain aspects. Our request in the first instance was refused. This was met with further submissions and further material, which ultimately resulted in our clients initiating judicial review proceedings challenging the failure to apply to reopen the case pursuant to Rule 80 of the Rules of the European Court. Given that the deadline was five days from the start of the hearing of the judicial review, which ultimately took three days to resolve, it was ‘edge of your seat’ litigation. The announcement in the court was however, one of those moments that I will never forget.
You are also acting for Ibrahim Halawa a teenager from Firhouse in south Dublin, who has been detained in Cairo since August 2013 aged 17. (The Egyptian House of Representatives recently objected to Ireland’s call for Ibrahim’s release.) What will be the next steps in your representation of Ibrahim? Ibrahim’s case is deeply disturbing. It is difficult to put it into words what Ibrahim is going through. There is a vacuum of due process in Egypt. The concept of a mass trial (with 493 people charged) which is adjourned 16 times without a trial date ever being set, without the guarantee that you can call defence evidence or challenge the States’ evidence, which if convicted you may face the death penalty, is an alien concept to us on this island. Long may that continue. The entirety of the process to which Ibrahim is subject to, defies the very basic principles of international law. It doesn’t require an expert to see what is going on falls way short of what is required in modern day society. It is no secret that Ibrahim’s case has been laced with delays and setbacks. To say we have no faith in the trial process is an understatement. However we have, as a legal team, tried to utilize those mechanisms available to us to ensure that the maximum pressure is brought to bear to secure his effective release. That includes the representations to the various UN Special Rapporteurs which communicated their
The entirety of the process to which Ibrahim is subject to, defies the very basic principles of international law
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I have seen those in power do very many great things. However, without being case specific, I think the idea that this island is free from corruption or abusing power, is an entirely naïve concept
concerns to the Egyptian Government earlier this year, and applying for Ibrahim’s release pursuant to the constitutional provision known as the Presidential Decree. This provision allows for Ibrahim to be deported back to Ireland should the President feel it is in the interests of the Egyptian State. Although there has been much debate surrounding this issue, an application was finalized, and submitted in late August 2016 which was subsequently endorsed by an Taoiseach and the Minister for Foreign Affairs and Trade. At the time of writing, we currently await a determination of this application. We hope that in light of the recent concerns raised by the highest bodies including the UN and the EU Parliament, in tandem with the concerns raised by the Irish Government at the highest level, will go some way to ensuring that the Egyptian President determines the application in Ibrahim’s favour so that he can return home to continue his education and get on with his life, of which he has already lost three very important years. You are also acting for Ann Doherty the sister of Mary Boyle, Ireland’s youngest missing person. Mary, a twin of Ann’s went missing aged six in Ballyshannon, Co Donegal in 1977. Investigative journalist Gemma O’Doherty released Mary Boyle: The Untold Story some months on YouTube and the documentary is gaining public traction and has recently won awards. Do you think this has assisted in the decision by an Garda Siochána to pass the case of Mary Boyle to its Cold Case Review team? I think it is indisputable that the recent documentary by Gemma O’Doherty has spearheaded the campaign for Mary Boyle back on to the map. Regrettably, our client remains concerned by the inability of the Cold Case Review team to ensure that the investigation is conducted effectively with sufficient independence, and expeditiously. At this present time, our client remains focused on the view that the most appropriate forum for allaying her concerns and suspicions arising from the fresh evidence uncovered, is by way of an inquest or like-minded investigation which we say
can discharge the obligations imposed on the state pursuant to the European Convention on Human Rights. There have been allegations of political and Garda corruption made in respect of the original investigation of Mary’s disappearance. Do you think a part of this culture still exists some 40 years later? I don’t subscribe to the view that absolute power corrupts absolutely. In my own experience, I have seen those in power do very many great things. However, without being case specific, I think the idea that this island is free from corruption or abusing power, is an entirely naïve concept. Regrettably, very many people in often very high places retain skeletons in their closets, which it is in their interest that never see the light of day. It is therefore my view that before we can reconcile with past injustices, we need to ensure that those appropriately placed, do not obstruct the truth from being uncovered. Without the truth, those touched by such injustices will be unable to reconcile. What do you think has been your greatest legal achievement to date? Being the first Irish-based lawyer nominated for the Legal Aid Lawyers of the Year award in London, in itself, was a hugely humbling moment for me. However, to go on to win, was a privilege that I am deeply proud of. However, as I have previously said, such awards are not an individualistic project, and I for one put my success in the LALY down to the clients and lawyers I work with, who collectively have played as big a role as I have in the various cases to which I have the privilege of being involved. In consistently working on such high-profile demanding cases, how do you find time to relax? I don’t think any solicitor works 9 to 5. So like everyone else, I like to let off steam in whatever way possible – including running, reading and of course, in typical Irish style – by going to the local pub. Darragh we wish you the best of luck in your future career and thank you for taking the time to talk to The Parchment. P
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Shareholder Disputes With increased economic activity shareholder disputes, especially in small private companies tend to be more common. The fundamental issue in any such dispute normally boils down to the question of share valuation. Mark Heslin examines the circumstances in which the court will (and will not) apply a discount in relation to a minority shareholding, following a petition (now under section 212 of the 2014 Companies Act)
ection 212 of the 2014 Act contains similar wording to its predecessor with the addition of an express provision allowing the court to direct the payment of compensation. Often a minority shareholder will be seeking an order directing the majority, or the company, to purchase their shares. The key issue in such a dispute, regardless of whether the parties opt for mediation, settlement discussions or litigation, will often concern the value to be placed on the shareholding in question.
Valuation ‘Gap’ Even where expert valuers have been retained, one routinely sees a major ‘gap’ between the valuations proffered on both sides. In Re Emerald Group Holdings Ltd  IEHC 440 (“EGHL”) Finlay Geoghegan J found that the respondents as directors of EGHL, allowed the business of that company, and the right to participate in profits, to be carried on by a separate company known as Best Christmas Trees Limited
(“BCTL”), to the exclusion of the petitioner who held approximately 19.5% of the issued share capital of EGHL. The court was satisfied that the petitioner had made out an entitlement to relief under section 205 of the 1963 Act and that the appropriate order was to direct the purchase, by BCTL, of the petitioner’s shares held in EGHL. Comments by Finlay Geoghegan J in that case illustrate the difficulties which can arise in relation to the crucial issue of share value.
Minority Interest Ms Justice Finlay Geoghegan carefully analysed each element of disagreement, accepting or rejecting, as she saw fit, the various propositions put forward by both valuers and ultimately came up with a valuation which the court felt was fair. Perhaps unsurprisingly, neither of the valuations submitted by the parties to the dispute was fully accepted and the court came to its own conclusion on the matter. The respondent’s valuer also argued that the 100% value of BCTL should be discounted by 30%, given that the petitioner’s shares constituted a minority
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Winter 2016 dsba.ie Mark Heslin is a partner in the Commercial Litigation Department of Beauchamps
interest – an approach which was opposed on behalf of the petitioner. On the particular facts, Finlay Geoghegan J concluded that it would be reasonable to apply a reduction of approximately 20%. A fundamental question arises as to the circumstances in which a minority shareholding will, or will not, be discounted.
Applying a “Discount” In Irvine v Irvine,  4 All E.R. 102, the court held that the petitioner was entitled to relief under equivalent English legislation. The petitioner was a minority shareholder in the relevant company but only by one share less than 50%. The court ordered that the minority’s shares be purchased. As Mr Justice Blackburne explained in his 23rd March 2006 decision: “The question which I have to decide is whether in the working out of the buyout order the 49.96% shareholding (as effectively it is) is to be valued on a pro-rata, non-discounted basis…” His Lordship observed that most of the authorities which addressed the question of whether shares in a company, the subject of such a
petition, should be valued on a pro-rata or on a discounted basis had been cases where the company was, or was alleged to be, a quasi-partnership.
30% Discount In a later decision in the same case, delivered on 24 July 2006, Mr Justice Blackburne considered the extent of the discount which it was appropriate to apply in respect of a minority shareholding. Different experts representing the parties had suggested a range as low as 10% and as high as 40%. The trial judge was satisfied that a discount of 30% was appropriate to adopt.
Quasi-Partnership We see from the foregoing that, whether or not a company can properly be regarded as a quasi-partnership, may be of fundamental relevance to whether a discount should be applied to a minority shareholding. Thomas B Courtney’s book The Law of Companies (4th edition) contains the following description of a quasi-partnership and its consequences. the Parchment 41
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Where a relationship of ‘equality, mutuality, trust and confidence’ based on a personal relationship, subsists in a private company it may be appropriate that the relationship between its shareholders be described as a quasi-partnership “Where a relationship of ‘equality, mutuality, trust and confidence’ based on a personal relationship, subsists in a private company it may be appropriate that the relationship between its shareholders be described as a quasi-partnership. Such a finding may result in members and directors being found to be restrained on equitable grounds from enforcing rights found in the ‘black letter of the law’. In such companies, acts and omissions may be found to amount to oppression or disregard of members’ interests by reason of equitable considerations. Formal rights may be forced to give way to equitable principles implied from the law of partnership.” In his 2013 decision in Re Dublin Cinema Group,  IEHC 147, Mr Justice Charlton, who was then in the High Court, suggested that a quasi-partnership could exist in a company when: “… its background is of two or more friends, two or more family members, two or more business partners operating together through a limited liability or other corporate vehicle for the purpose of carrying on their business… In other words… where behind the company there are a small number of investors who have gotten together through a less than formal start and who have operated not at arm’s length but, because of the ties of family or affection, based on long, mutual co-operation between them. When that kind of governance breaks down, it can be just and equitable to wind up such a company.”
Denying a Discount The authorities suggest that, where a company is found to be a quasi-partnership, it may be appropriate for the court to refuse to apply a discount in respect of a minority shareholding. The reason for this approach was very clearly outlined by Lord Millet in CVC/ Opportunity Equity Partners Ltd. v Demarco Almeida  UK PC 16;  2 BCLC 108 and is worth referring to.
General Rule It seems fair to say that refusing to apply a discount for a minority holding in a quasi-partnership company may be regarded as a general rule. This was certainly the thrust of the observations by Lord Justice Ardan in his 2006 decision in Strahan v Wilcock, 2 BCLC 555;  EWCA Civ 13. It seems worthwhile observing that if the general rule is not to discount a minority shareholding in a
quasi-partnership context, the fact that a company is found to be a quasi-partnership will itself, be exceptional. Under normal circumstances, the relationship between members of a company is governed by the relevant Articles of Association and by statute. The 2010 decision in Fowler v Gruber,  1 B.C.L.C. 563 explains the approach in the absence of exceptional circumstances.
Irish Approach In Re Skytours Travel Ltd.  IEHC 517;  4 I.R. 651, Laffoy J dealt with a petition under section 205 of the 1963 Act where the respondent had fraudulently operated a secret bank account into which monies, properly due to the company, had been lodged for the respondent’s benefit. Laffoy J held that the affairs of the company were conducted in a manner oppressive to the petitioner and ordered that the respondent purchase his shares. The question arose as to whether a discount should apply to the value of the petitioner’s minority shareholding. Having reviewed a number of authorities, Laffoy J came to the following conclusion: “I am persuaded by the decisions of the courts of the United Kingdom, to which I have referred above, that it is only in the case of a quasi-partnership company or where some other exceptional circumstance exists that a minority shareholding should be valued on a non-discounted basis where the court has directed that the petitioner’s minority shareholding should be purchased by the respondent shareholder or by the company pursuant to s. 205(3) of the Act of 1963. In this case the company is not, and never was, a quasi-partnership company. There is nothing in the circumstances of the case which would justify a non-discounted basis of valuation of the petitioner’s shareholding. Accordingly in the valuation process, in order to fix a fair price, the appropriate discount, having regard to the minority nature of the petitioner’s shareholding, must be applied.”
Conclusion In light of the foregoing it appears to be settled law that a discount will normally apply to the valuation of a minority shareholding in the context of an order for the purchase of shares pursuant to section 212 of the Companies Act, 2014. As practitioners will be aware, many companies in Ireland are small and private, limited companies, often owned and controlled by family members. Where a relationship of equality, trust and confidence exists between individuals who have chosen to conduct business using a corporate vehicle but in circumstances where the facts reveal a quasi-partnership relationship, no discount will apply to a minority shareholding. As the economy recovers and commercial activity increases, one would not be surprised to see an increase in disputes for which section 212 is designed to provide a remedy. Given that share valuation will be at the heart of any such dispute, the above guidance in relation to the circumstances in which a discount will apply, may well be of some interest to readers. P
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The Ryan Report -
EU and Technology News EU SECURITY – THE NEW EU PNR DIRECTIVE The Passenger Name Record (PNR) directive 2016/681 was published on 27th April, 2016. In short, the data of all air passengers, both EU citizens and third-country nationals, (including those flying between Schengen countries) will be transferred to specialised intelligence units to be analysed in order to identify persons of interest and aid in detecting terrorist offences and other serious crimes. This throws up obvious privacy and citizen concerns and this directive will undoubtedly end up before the Court of Justice sooner rather than later. After the surge in terrorism in 2001, the US led the way in examining the movement of passengers, border security and upping the fight against international terrorism. Included in this was the adoption of legislation obliging any airline flying into the United States airspace to provide their domestic authorities with the data on the passengers. Included in this data is the name on the passport, means of payment, travel arrangements and contact details. This model was internalised in the EU in three agreements with the US, the first in 2004 which was struck down by the Court of Justice in 2006, and two subsequent agreements in 2007 and 2012. The entry into force of the Lisbon Treaty marked the first proposal for a framework decision, and a revised proposal was released in 2011. It was however, greeted with great scepticism by the major EU bodies including the European Data Protection Supervisor, the Fundamental Rights Agency and the Article 29 Working Party, who argued that it failed to respect the principles of necessity and proportionality and eventually the proposal was rejected by the European Parliament on fundamental human rights grounds. The PNR project was resurrected after the Charlie Hebdo attack in January 2015. At an extraordinary council meeting immediately after the Paris terrorist attacks, the Council reiterated “the urgency and priority to finalise an ambitious EU PNR before the end of 2015”. The directive places a duty on airline carriers operating international flights between the EU and third countries to forward the PNR data of all passengers to the Passenger Information Unit (PIU)
established at domestic level for this purpose. Once transmitted the data will be stored and analysed by the PIU for the purposes of identifying persons who were previously unsuspected of involvement in terrorism or serious crime. Focusing on prevention is central to the directive. The PIU will respond to requests by national authorities to access the data on a case-by-case basis. In theory processing will not take place on the basis of sensitive data revealing race, ethnic origin, religion or belief, political or any other opinion, trade union membership, health or sexual orientation, etc. The initial retention period is six months and thereafter as approved by an appropriate judicial authority. Clearly the PNR system poses considerable challenges to the protection of privacy and data protection rights. The directive allows for the systematic blanket and indiscriminate transfer, storage and further processing of a wide range of personal data of millions of airline travellers. The right to privacy as set out in Article 7 and 8, as emphasised in the Digital Rights Ireland case has long been established within the European Union, but the interference with the right to privacy and data protection in pursuance with Article 7 and 8 as a result of this directive is clear. On the basis of the data collected which includes biographical information, credit card details and contact information, the law enforcement authorities will be able to compile a complete profile of travellers’ personal and private lives. With regard to the periods of retention, the EU institutions do not have a clear understanding of what constitutes proportional retention period. The 2007 proposal envisioned a retention period of five years after which time, the data will be de-personalised and kept for a further eight years. The 2011 proposal prescribed an initial retention period of 30 days and thereafter five years. In 2015 the Council called for an extension of the initial retention period to two years followed by a further three years of storage. By adopting US standards, the EU puts the privacy of individuals under threat. While mass surveillance practices are now being justified as a result of the terrorist attacks, the swing away from individual rights is not to be welcomed.
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Winter 2016 dsba.ie Greg Ryan is programmes director of the DSBA and he is chair of the Law Society Technology committee
THE NEW GENERAL DATA PROTECTION REGULATION (GDPR) â&#x20AC;&#x201C; HOW DOES IT AFFECT SOLICITORS? The GDPR was published on 4th May in the official journal of the European Union with a proposed implementation date of 6th May 2018. Even though it is a regulation, important national differences will arise that will affect how lawyers in different jurisdictions work. For the purposes of this article, we will examine the main new compliance measures that we will need to take to fulfill the requirements as set out in the regulation. The first item that solicitors should be aware of is the new security breach notifications. According to Article 33, a law practice acting as a data controller must notify any personal data breaches to the supervisory authority without undue delay, and in any event, not later than 72 hours after having become aware of it. (There is an exception where the data breach is unlikely to result in any harm to the data subject.) If the firm is acting as a processor, it must also notify the controller without undue delay after becoming aware of a personal data breach. The notification has to contain, among other things, the nature of the data breach, the likely consequences of the breach and the measures taken to mitigate the possible adverse effects. The notification can be made in different phases, not necessarily all at once. Furthermore, the firm is required to document such breaches in a sufficiently detailed manner, so that the supervisory authority can verify compliance with the breach notification. The practice will also have to set down internal procedures for handling data breaches and to establish a mechanism for notification. In certain high risk cases the practice is also required to notify directly their clients (under Article 34), a prospect which no doubt will terrify colleagues. This is a direct divergence from the old directive, 95/46/EC, which did not oblige data controllers to report data breaches to the supervisory authority. As for future regulations, under the GDPR, Article 70, the European Data Protection Board will also issue guidelines, recommendations and best practices into the future. Article 17 includes the right to erasure (otherwise known as the right to be forgotten), which means
that data subjects have the right to require of the controller the erasure of personal data concerning them without undue delay. Undue delay is not defined, but this obviously will cause problems in the future with the requirement of solicitors to retain such adequate records as are necessary for the maintenance of their files and their responsibilities to the Law Society, the Revenue Commissioners and their clients. The third requirement is that the law firm must appoint a data protection officer (DPO). This requirement arises if the data processing activities of the firm involve regular and systematic monitoring of data subjects on a large scale, or the processing of special categories of data on a large scale. The regulation imposes new obligations on the DPO such as monitoring compliance with the regulation, with other European Union or member state data protection provisions, obligations of awareness raising and training of staff involved in data processing operations and related audits. The fourth requirement is under Article 35 which requires impact assessments. Where a type of processing is likely to result in a high risk to the rights and freedoms of natural persons including any processing on a large scale of special categories of data, the controller must carry out an impact assessment. Strangely, there is an exemption for sole practitioners but nonetheless a large law practice could still be required to deliver such an impact assessment from time to time. The fifth requirement is data portability. Data subjects have a right to obtain from the firm a copy of their personal data that has been processed and the regulation requires that the data be handed over in a structured, commonly used and machine readable format. These very generic requirements are open to a considerable range of interpretation. Finally, the data controllers have an obligation to be able to track recipients of personal data pertaining to a specific person. This is an obligation which can only be met when certain changes are made to the IT systems of law practices which will present its own challenges in the future. the Parchment 47
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Mental Health and Capacity Law MENTAL HEALTH AND CAPACITY LEGISLATION UPDATE Practitioners should note that two recent statutory instruments commenced certain sections of the Assisted Decision-Making (Capacity) Act 2015 on 17th October 2016. Minister Fitzgerald by, S.I. No. 515 of 2016, Assisted Decision-Making (Capacity) Act 2015 (Commencement Of Certain Provisions) Order 2016 appointed the 17th October 2016 as the day for the coming into operation of the following parts of the Act: Part 1, other than sections 3, 4 and 7 and Part 9, other than section 96, section 102 and Chapter 3. The sections of Part 1 that have become operative deal with interpretation and expenses. Part 9 deals with the establishment of the new role of the Director of the Decision Support Service. The Mental Health Commission is statutorily charged with the appointment of the Director and it is envisaged that the Director will
take over some of the functions previously managed within the Ward of Courts Services. Minister Harris, by S.I. No. 517 of 2016 Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) (No. 2) Order 2016, appointed 17th day of October 2016 as the day for the coming into operation of - the definition of “Minister” in section 82; - the definitions of “code of practice” and “working group” in section 91(1); and section 91(2). This order provides for the commencement of section 91(2), and relevant definitions, of the Assisted DecisionMaking (Capacity) Act 2015 for the establishment, by the Minister for Health, of a multi-disciplinary working group of suitable persons willing and able to make recommendations to the Director of the Decision Support Service in relation to codes of practice pertaining to the advance healthcare directive provisions of the Assisted Decision-Making (Capacity) Act 2015. Aine Hynes, St John Solicitors
Family Law PRACTICE NOTE - FAMILY LAW RULINGS The Circuit Court office have confirmed that in order to have a consent divorce ruled the following must be done: 1. A motion for judgment in default of appearance or defence is to be used together with the appropriate grounding affidavit. 2. You might have terms of settlement/consent terms signed by both parties and witnessed. The original consent terms must be lodged at the same time as you issue the default motion. 3. You must file an affidavit of means for both parties.
4. If there are pensions, the notice of trustees must have been served on the pension trustees. 5. With respect to serving the notice of trustees of pensions, you must file an affidavit of service. It cannot be filed before ten days have elapsed. 6. The matter, if all the above is fully complied with, will be transferred directly into the judge’s list. If the above criteria are not fulfilled, then the matter will go into the county registrar’s list. Avril Mangan Mangan & Company Solicitors
Litigation LONG VACATION GETS SHORTER Keith Walsh draws colleagues’ attention to the change in relation to time running for delivery or amendment of pleadings during the long vacation. September but not August counts for time purpose re: delivery of pleadings after change to the superior court rules. S.I. 471 of 2016 amends rules 4 and 5 of Order 122 of the rules of the superior courts to permit:
• The delivery or amendment of a pleading during the long vacation. • Unless on consent or by direction of the court, August shall not be reckoned in the computation of time allowed by the RSC for amending or delivering a pleading • Time to run during September This S.I. came into effect on 10 October 2016 so next year the long vacation will not be quite as long as before.
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Winter 2016 dsba.ie
Employment Law SUCCESSFUL DSBA EMPLOYMENT LAW SEMINAR Three presentations were made at the seminar where Tom Mallon, B.L. provided a comprehensive paper on the Protected Disclosures Act, 2014. Richard Grogan gave a detailed paper on ‘Tips and Traps’ in bringing and defending claims before the Workplace Relations Commission and the Labour Court. There was a highly informative and practical presentation on the practice and procedure in the Labour Court given by Alan Haugh, B.L. who is a deputy C=chairman of the Labour Court. For practitioners
the presentation by Alan Haugh, B.L. was informative as regards what the Labour Court does. What was particularly relevant for practitioners, especially those who would have been used to dealing with the Employment Appeals Tribunal, was the procedures of the Labour Court, how they are different and why those procedures are in place. The talk by Alan Haugh as a deputy chairman was most useful in that not only were matters explained, but the reasons and rationale for same were very clearly set out, and gave a great insight into the workings of the Labour Court which was invaluable for practitioners. DSBA Litigation Committee
myriad of benefits available and how to avail of them if certain circumstances are met. A insightful chapter on pension planning and a guide to income tax, local property tax and capital gains tax are all features of the new book. Former President of the High Court, Nicholas Kearns provides the foreword and commends the author for his work on the updated publication but also for his charitable generosity in donating the royalties from the book to the Alzheimer’s Society. At €20.00, Costello’s excellent book is a must for every office. It simplifies many aspects of practice today and his wealth of knowledge gained by many years in practice, will benefit the reader. John Geary, Editor
LAW AND FINANCE IN RETIREMENT (3RD EDITION)
Author John Costello
Blackhall Publishing, €20.00
Former Law Society President John Costello has done a superb job in his updated Law and Finance in Retirement publication which was launched in November 2016. The previous edition was published in 2002 so the arrival of the 3rd edition is to be welcomed. The book is aimed at consumers but is very useful for practitioners as it deals with many important legal aspects of the aging process. There are practical and informative chapters dealing with Wills, Tax, Probate generally, Power of Attorney and Enduring Powers of Attorney. Costello has an excellent chapter in his book on the Assisted Decision-Making (Capacity) Act 2015 and its implications on the elderly. The Orpen Frank’s Consultant has provided comprehensive information and advice to his readers on Nursing Home and Residential Care scenarios and the issues arising. There is a helpful chapter “Entitlements for over sixties” which highlights the the Parchment 49
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DSBA Younger Members’ Committee Host Successful Events Left: Speakers Michael Shanley, Panda Group; Susan Martin, Martin Solicitors; Margaret Kearney, CarTrawler; Micheál Grace, Mason Hayes & Curran. Far left: Aideen Murphy, Rachel Walsh, Ruth Lyndon, Kiara Daly, Jonathan Olden, Morgan McKinley
Morgan McKinley CPD Event The DSBA Younger Members Committee was delighted to team up with the legal recruitment team at Morgan McKinley to hold a professional development CPD event on 27th October 2016. We were joined on the night by four fantastic speakers: • Michael Shanley, general counsel, Panda Group • Micheál Grace, partner, Mason Hayes & Curran • Susan Martin, owner and sole practitioner, Martin Solicitors • Margaret Kearney, general counsel, CarTrawler Each of the speakers on the night
candidly talked us through their career paths to date (including the highs and the lows) and described to us how their current day to day looks. The most notable message of the night was that the speakers share so many similar challenges and experiences regardless of being in practice or in-house. Client management and commercial prowess are vital in the senior ranks of both. It was also agreed that the work/life balance is not always better in-house. Forty solicitors came along on the night to listen to the discussion and took the opportunity to network with their colleagues and the speakers afterwards.
Margaret Kearney of Car Trawley addressing the CPD
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Winter 2016 dsba.ie
DSBA Younger Members News
BRIGHTWATER QUIZ The annual SYS/DSBA Younger Members quiz in support of Down Syndrome Ireland and the Emer Casey Foundation took place in the O’Callaghan Alexandra Hotel on 17th November 2016. The event was made possible by our generous sponsors, Brightwater Recruitment who ensured
that everything ran smoothly on the night. A total of €2,585 was raised which will be divided between our two very worthy causes. Most firms were represented on the night, however, it was McKeever who took home the much coveted first prize (for the second year in a row), with William Fry
coming a close second. There were plenty of raffle prizes up for grabs which were generously donated by businesses around the city. A great night was had by all in attendance and we look forward to the continued success of this annual event.
Left: Gavin Bluett, DSBA; Megan Shannon, Mason Alexander; Lucy O’Neill and Aishlinn Gannon, SYS; Eoin O’Cuilleann, DSBA. Far left: Deirdre Farrell, Marguerite Seymour, Rob Kearney, Laura Horan
Successful Sports Law and Banking Litigation CPD On 29th September 2016 the DSBA Younger Members in association with the Society of Young Solicitors (SYS) held a CPD seminar and social event in the Hilton Hotel, Charlemont Place Dublin 2. There were two very different but equally interesting topics covered which were Sports and the Law with Larry Fenelon, managing artner of Leman Solicitors and The Consumer Defence in Banking Litigation by Nathan Reilly, B.L. who specialises in financial services litigation. The Younger Members and SYS were delighted with the large turnout for the seminar. Given that we are in an Olympic year the Younger Members and the SYS decided to capitalise on the chance to have a sports law twist for a CPD seminar. Larry
Fenelon heads up the sports law team in Leman Solicitors. He and his team act for approximately 30 of the national sports governing bodies in Ireland along with a large number of sports clubs across the country and individual athletes in relation to sports disciplinary matters. Larry gave an insight into the development of sports-specific dispute resolution processes both nationally and internationally and rounded off the presentation with some interesting legal cases that arose in relation to the Olympics which took place last summer. Nathan Reilly, B.L. then gave a detailed and technical presentation on the consumer defence in banking litigation which focused
on the case law in which defendants in banking litigation had sought to avail of protections afforded by Part III of the Consumer Credit Act 1995 (CCA). Nathan explained how Part III of the CCA contains an unusual statutory provision which renders applicable loan agreements, guarantees and related security unenforceable, subject to a limited statutory saver, in circumstances where lenders have failed to comply with certain consumer protections set out in that part of the CCA. After the speakers had finished their presentations the attendees enjoyed a barbeque and social event in the bar of the Hilton Hotel Charlemont. Mason Alexander kindly sponsored the event on the evening. the Parchment 51
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Here’s to you Mr President
The Parchment sends its sincerest congratulations to Stuart Gilhooly who took over the Presidency of the Law Society last month for the coming year ahead. Stuart has been the lynchpin of the Parchment for the past decade and more, and can be credited
for this magazine’s growth and success. Stuart has taken a sabbatical from his work on the Parchment as he is dedicating all of his energies and focus on representing colleagues in the profession right around the country.
Best known for his interview “the cross examination”, Stuart is known for his canny interviewing technique, an ability to get the most out of interviewees and more especially his writing style and mastery of the pen. He won the coveted Journalist of the Year Award at the 2011 Magazine Awards. The ‘cross examination’ scribe was then awarded with the top prize for his outstanding series of articles and interviews in the Parchment. Over the years Stuart has interviewed the following persons for the “Cross Examination” - Gerald Kean, Kevin O’Higgins, Moya Quinlan, Laurence K Shields, Mr Justice Richard Johnson, Miriam O’Callaghan, Alan Shatter, Padraig O’Riordan, Ken Murphy, Dermot Ahern, Frank Ward, Geraldine Clarke, Geraldine Kelly, Michael McDowell, Michael Finucane, Maurice Watkins, Senator Catherine Noone, Waheed Mudah, Keith Walsh, Justice Minister Frances Fitzgerald, Mr Justice Michael Peart, Peter McDonnell, Muriel Walls, Aaron McKenna, Kieran Conway, Lucinda Creighton, James MacGuill and Noeline Blackwell. A partner in the firm HJ Ward & Co in Harold’s Cross, Stuart served as President of the DSBA in 2010-11. We wish Stuart a very successful year as President of the Law Society at a time when the profession faces many challenges.
Justice Minister Launches Family Law Book Frances Fitzgerald, TD, Tánaiste and Minister for Justice and Equality launched Dr. Geoffrey Shannon’s superb book Children and Family Relationships Law in Ireland on 24th November 2016 at the National Library of Ireland. The book was published by Clarus Press and is widely available. 52 the Parchment
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Revised Book of Quantum Launch
Pictured at the Four Courts at the recent presentation of the revised ‘Book of Quantum’ were: Mr Justice Peter Kelly, President of the High Court; Joe Pendle, Verisk Analytics, the company who compiled the General Guidelines; and Conor O’Brien, Chief Executive of the Personal Injuries Assessment Board
Morris Partners up at AMOSS Congratulations to our colleague Killian Morris who was recently appointed partner at AMOSS Solicitors, Dublin 2. Killian joined AMOSS in 2014 following ten years of practice with another prominent Dublin firm acting for Irish businesses, property developers and high net worth individuals in relation to all their property and commercial law requirements. He is part of the AMOSS real estate team, primarily acting for property developers, financial institutions, insolvency practitioners and investors in relation to all aspects of the purchase, sale, leasing and financing of commercial property. Killian has been part of the Parchment committee for the past number of years and is a regular contributor with his interviews and solicitor profiles. We wish him well in his new role.
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50+ years in Practice
A lunch was hosted by the DSBA on 14th October 2016 in honour of solicitors. The event was held at the RDS and a large attendance marked this very special annual occasion.
Left: Con Clancy, Vivian Matthews
Left: David Bell, Tommy Oâ&#x20AC;&#x2122;Reilly Far left: Brendan Walsh, Noel Tanham
Right: Denis McDowell, Nora McDowell, Maura Smith Far right: Colm Price, Margaret Callanan, Andrew Smyth
Left: James Mackey, Gerard Gannon Far left: Des Oâ&#x20AC;&#x2122;Malley, Laurence Farrell
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Winter 2016 dsba.ie Photography: Michael Finn
Left: Patrick McMahon, John Fitzpatrick, Pat O’Brien Far left: Tom Menton, Norman Gruson, Thelma King
Right: Patrick Dunne, Tim Crowley Far right: Sean O’Ceallaigh, Kenneth Clear, Eamonn Shannon (President DSBA)
Left: Norman Gruson, Myra Gruson Far left: John Buckley, Brendan O’Maoileoin
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DSBA Property Seminar
The DSBA Property Committee hosted a CPD seminar entitled “New Builds in New Times” on 10th October 2016. The speakers were Alison O’Sullivan, BryneWallace; Suzanne Bainton, Liston & Co and Sharon Pennick, Leman.
Photography: Michael Finn
Left to right: Dearbhla de Barra, Elaine Martin and Brendan Smyth, all from NAMA
Left: Anne O’Sullivan, Rennick Solr; Tony Reynolds, Tony Reynolds. Far left: Michael Keaveny, Keaveny Walsh & Co; John O’Leary, John O’Leary & Co
Right: Jemma Lyons, Gordon Judge; Edel Finn, Gordon Judge. Far right: Lesley Dempsey McCormack Solr; Justin Walsh, O’Gradys
Left: Marjorie Murphy, Murphy McElligott; Ethna Ryan, partners at law. Far left to right: Siobhan Whelan, Baily Homan Smyth McVeigh; Aodhnait Burke, Baily Homan Smyth McVeigh
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Winter 2016 dsba.ie Photography: Michael Finn
DSBA Property Seminar
The DSBA Property Committee hosted a CPD seminar entitled “Landlord & Tenant Law in a Changing Market” and “Cyber Security for you as well as your Clients” on 3rd November 2016. The speakers were Simon Hannigan, Arthur Cox; Tony O’Sullivan, Beauchamps and Mike Harris, Grant Thornton.
Above: Ben O’Rafferty, Ben O’Rafferty; Helen O’Connell, Sherwin O’Riordan
Above: Emily Foley, CSSO; Eimear Bodd, CSSO; Cliodhna Dullea, CSSO Left: Emma Flynn, Amoss Solicitors; Simon Hannigan, speaker. Far left: Brian Roe, Hughes & Liddy; Kieran Roe, O’Donohoe
Right: Jacqueline Mulroe, Cavendish Lane Properties; Elizabeth Ward, Elizabeth Ward Solr. Far right: Mary Kiely, Revenue; Aine Gleeson, Chair
Left: Tony O’Sullivan, speaker; David Soden, David Soden Solicitors. Far left: Neil Coffey, CSSO; Aine Lee, Eversheds
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DSBA Annual General Meeting
The DSBA held its annual general meeting on October 26th 2016 at the Westbury Hotel. A capacity crowd was in attendance. Aine Hynes took over the reins as the new DBSA President for the year ahead.
Above left to right: Eamonn Shannon; Greg Ryan; Aine Hynes, President DSBA; Robert Ryan; Elaine Given; Tony O’Sullivan. Left: Aine Hynes, President DSBA. Far left: Aine Hynes, President DSBA; Tony O’Sullivan
Right: Diego Gallagher; Greg Ryan. Far right: John (Spanner) O’Malley; Kevin O’Higgins
Left: Elaine Given; Joe O’Malley. Far left: Eamonn Shannon, outgoing President DSBA; Deirdre McDermott; Keith Walsh
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Winter 2016 dsba.ie Photography: Michael Finn
Above: Evanna Killeen; Eamonn Shannon, outgoing President DSBA; Rudhan Killeen Left: Eamonn Shannon, outgoing President DSBA; Aine Hynes, new President DSBA
Right: John Glynn; Tom Menton Far right:Matthew Kenny; Susan Martin Left: Richard Hammond; Daniele Kerins. Far left: Niall Cawley; Laura Horan; Paul Ryan
Right: Robert Ryan; Conor Ryan. Far right: Killian Oâ&#x20AC;&#x2122;Reilly; David Martin
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DSBA Litigation Seminar
The DSBA Litigation Committee hosted a CPD seminar entitled “Medical Litigation and Psychological Health” on 8th November 2016. The speakers were Dr A. Paula McKay; Patrick Mullarkey, BLM Solicitors; Dr Myra Cullinane, Dublin District Coroner and Ray Motherway, BL. Mr Justice Paul Coffey chaired the seminar.
Photography: Michael Finn
Left to right: Speakers Eamonn Carroll; Dr Myra Cullinane; Patrick Mulloy; Dr Paula McKay; Judge Paul Coffey; Avril Scally
Left: Lisa Timmon, Hayes; Conor Morgan, Hayes. Far left to right: Kathrina Bray, Orpen Franks; Andrea Liston, State Claims Agency; Rachael Liston, Orpen Franks
Right: Nessa O’Roarty, BLM; Lisa Conkey, BLM. Far right: David Dunning, State Claims Agency; Padraic Brennan, Ronan Daly Jermyn
Left: Fergal Dennehy, Ronan Daly Jermyn; Ita Guilfoyle, State Claims Agency. Far left: David Turner, David M Turner Solicitor; Beverly Turner, Taylor & Buchalter
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Winter 2016 dsba.ie Photography: Paul Sherwood
DSBA Younger Members Seminar
The DSBA Younger Members Committee held a professional development seminar on 27th October 2016 at the offices of legal recruitment firm Morgan McKinley. The speakers were Michael Shanley, general counsel, Panda Group; Micheal Grace, Mason Hayes & Curran; Susan Martin, Martin Solicitors and Margaret Kearney, general counsel, Car Trawler
Above: Eavan Jennings, WBC, Sean O’Connor, Global Finance
Above left to right: Ruth Lyndon, Morgan McKinley, Micheál Grace, Mason Hayes & Curran, Jonathan Olden, Morgan McKinley, Kiara Daly, Morgan McKinley, Margaret Kearney, CarTrawler, Michael Shanley, Panda Group and Susan Martin, Martin Solicitors Left: Jonathan Olden, Morgan McKinley; Niamh Gibney, Nicola Dawson, Fiona Brennan, Andrew Thorne, Reddy Charlton. Far left: Robert Upton, Eimear Finan, Finn Considine, Gartlan Furey
Right: Jane Bourke, Colleary & Co Solicitors; Anne Marie Igoe, Mason Hayes & Curran; Ruth Prendiville, LK Shields; Olivia Higgins, Mason Hayes & Curran. Far right: Aoife Fitzpatrick, Sarah Lavelle, Ciara Garaghy, Susan Deasy, Laura Feely, Eugene F. Collins Left: Karen O’Brien, Galligan Johnson, Rachel Harney, Byrne Wallace. Far left: Laura Horan, MacGeehin Toale Solicitors, Sharon O’Connor, Matheson, Jonathan Olden, Morgan McKinley
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Keith Walsh is principal of Keith Walsh Solicitors, Crumlin. He is a former editor of The Parchment and former resident of the DSBA
Closing Argument Keith Walsh
Too Much Excitement For One Year
his year was meant to be the year of celebration, a centenary year. We celebrated until Easter. After that, things got a bit, well, exciting. At times this year, you could have been forgiven for thinking you were watching a live episode of House of Cards when truth became stranger than fiction following the Brexit result. Our attention then turned to the US election. It was like watching a car crash in slow motion. Trump triumphs over divided field of Republicans. Trump trash talks. Hilary leads. Hilary loses.
we were presented with two fascinating and readable books on the judiciary which did much to cast a light on how judges are appointed and how they work behind closed doors. Jennifer Carroll MacNeill’s work on the current judicial appointments system lifted the veil on judicial appointments while Ruadhan MacCormaic’s The Supreme Court humanised the judges of the Supreme Court and provided a fascinating portrait of the judges on this court who have served the state since its foundation.
Madness and Ruin
Lear famously described himself as a man more sinned against than sinning and this could apply to our former Minister for Justice who ended 2016 on a high note. In an anti-Lear fashion themes of loyalty, true friendship and respect are evident in the long relationship between Alan Shatter and Brian Gallagher, his solicitor for this case, his friend and former business partner who did not abandon him when the going got rough but instead persevered to victory. To emerge victorious, jointly and severally after a titanic struggle with the state must have pleased both men and their supporters and colleagues. Alan Shatter’s victory is also a victory for the independence and impartiality of the judiciary. Surely there can never have been a personal litigant before who has reduced judicial pay and pensions and who was perceived in his time in office as no friend of the judiciary. This case would have been an ideal time for a biased or petty judiciary to settle old scores. This did not happen. Alan Shatter and his legal team believed in the rule of law as this obviously did not cross their minds and the case was decided on its own merits and justice was done.
Denis Staunton in the Irish Times used Glenda Jackson’s portrayal of King Lear on the West End stage this year as a metaphor for all that has gone wrong in 2016. The play was particularly appropriate for a post-Brexit Britain in which both the leave and remain sides felt they had been betrayed. Lear was the king who was taken in by insincerity, ignored truth and his true friends, was driven to madness and ruin and divided his kingdom. The focus in that play on the importance of truth tellers strikes a particular chord this year, given the inflated claims and phoney promises made by the election and referendum winners.
Justice for the Judges? Finding the truth in its many disguises and identifying insincerity are central to our common law system of justice with its emphasis on the rule of law. This has been an uncomfortable and unfair year for the custodians of our justice system - the judges. They can be criticised but they cannot answer back. Their wages and pensions can be slashed but they cannot strike. They can be falsely accused but they cannot defend themselves. Perhaps 2017 will see some justice for the judges with a fair judicial council and a more transparent system of appointment. In 2016
More Sinned Against than Sinning
Barely a Whimper It is not long ago that the legal profession
Like any change, it’s not what the change is that matters, it is how you prepare for it and deal with it
feared the introduction of the Legal Services Regulation Act as being an existential threat but when the board of the authority was appointed on 1st October 2016, it was with barely a whimper from this side of the profession. Who could have predicted this reaction five years ago? When it affects us, we will just get on with it. The DSBA and the Law Society have spent the last few years preparing for the introduction of the Legal Services Regulatory Authority and we look forward to benefitting from the fruits of their labours next year. Like any change, it’s not what the change is that matters, it is how you prepare for it and deal with it that will ensure whether you survive or join the legions of professions or professionals who are no more. As management gurus are fond of saying ‘it is not the strongest of the species that survives, nor the most intelligent that survives. It is the one that is most adaptable to change’. It is impossible to leave that quote without mentioning appropriately enough, given their recent referendum result, an Italian quote from di Lampedusa ‘if we want things to stay as they are, things will have to change’.
So Long Leonard This Closing Argument was going to close with predictions for 2017 but if there is one thing we have learned this year - there’s no point in forecasting. Whatever joys and disappointments 2017 presents we can remember the much missed Leonard Cohen, gone but never forgotten, and just get on with what we can get on with and leave the rest. Ring the bells that still can ring Forget your perfect offering There is a crack in everything That’s how the light gets in. Happy Christmas to all Parchment readers and here’s to a boring 2017. P
64 the Parchment
09/12/2016 3:48 p.m.
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