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D UB LIN SOLICITORS’ B AR ASSOCIATION MAGAZ INE | WIN TER 2017 | ISSU E 74

JURY SURFING Can digital data influence a jury during trial?

MARY LAFFOY CROSS-EXAMINED A DAY IN THE LIFE OF THE ATTORNEY GENERAL SEAMUS WOULFE SC

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ROUND HALL REUTERS/Gary Hershorn

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DELANY AND MCGRATH ON CIVIL PROCEDURE 4th Edition Hilary Biehler, Declan McGrath & Emily Egan McGrath The fourth edition of the widely-used Delany and McGrath on Civil Procedure provides comprehensive analysis of the main areas of civil practice and procedure in the Superior Courts. It contains in-depth commentary on the key aspects of procedure in the High Court, Court of Appeal and Supreme Court and refers to relevant case law, primary and secondary legislation and practice directions. The new edition publishes in January 2018. THE NEW EDITION OF DELANY AND MCGRATH ON CIVIL PROCEDURE INCLUDES THE FOLLOWING FEATURES: • All chapters have been revised and updated to take account of developments since the publication of the previous edition in 2012 • A new chapter has been added on Alternative Dispute Resolution • The procedure relating to appeals to the Court of Appeal and both normal and “leapfrog” appeals to the Supreme Court is analysed in detail • Comprehensive analysis of relevant case law, primary and secondary legislation and practice directions relating to aspects of civil procedure • Extensive analysis of various aspects of civil procedure such as the commencement and service of proceedings, pleadings, summary and special summons procedures, the trial of plenary actions, and the procedure in personal injury actions and in the Commercial List • Examination of interlocutory applications such as discovery, interrogatories, security for costs, dismissal of proceedings and the addition of third parties • In-depth analysis of judicial review applications, the procedure governing proceedings by way of case stated, and the recognition and enforcement of judgments under the Brussels Convention

Publication: February 2018 ISBN: 9780414066335 Price: €445.00 This title is also available as an eBook on Thomson Reuters ProViewTM and online at Westlaw IE.

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Winter 2017 dsba.ie

From the Editor

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elcome to the Christmas edition of the Parchment which is stuffed with a variety of articles that will hopefully whet your appetite. It is a distinct honour for the Parchment to have an exclusive interview with new Attorney General, Seamus Woulfe, SC, who gives us an insight into his typical working day at Government Buildings. Retired Supreme Court judge and Chair of the Citizens’ Assembly, Mary Laffoy meets with Stuart Gilhooly for the ‘cross examination’ interview. It is a privilege for this publication to share some of her insights and memories on a very distinguished legal career spanning almost five decades. Joe O’Malley pens a hugely topical article on how accused persons can expect a fair trial when jury members are free to Google the accused’s name and read about any previous convictions or criminal history on the internet? The courts have been doing their best to ensure that an accused’s constitutional guarantee that he/she is innocent until proven guilty is not interfered with in circumstances where jury

members may have their minds made up on the guilt or otherwise of an accused before a trial is fully heard. All thanks to the benefit of internet searching which in itself, may or may not be true. On the other hand, the courts have to respect the constitutional rights of publishers. These issues will continue to be a hot potato and the legislature may have to introduce laws sooner rather than later, to ensure that the constitutional guarantee of a fair trial is not jeopardised, yet a fair balance struck with what can be published online. Can I wish you and your loved ones a peaceful and relaxing Christmas and here’s to a successful and healthy 2018 for one and all.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2016/2017

ROBERT RYAN DSBA President

GREG RYAN DSBA Vice President

DIEGO GALLAGHER Honorary Secretary Chair of Family Law Comm.

TONY O’SULLIVAN Programmes Director

JOSEPH O’MALLEY Treasurer

SUSAN MARTIN co-Chair of IP & Technology Committee

LAURA HORAN Chair of Younger Members’ Committee

NIALL CAWLEY Chair of Practice Management Committee

PAUL RYAN Chair of Commercial Law Committee

MATTHEW KENNY

JOAN DORAN Chair of Mental Health & Capacity Committee

KILLIAN O’REILLY Chair of the Litigation Committee

RONAN McLOUGHLIN Chair of the Property Committee

CIARA O’KENNEDY Chair of the Employment Law Committee

GERARD O’CONNELL Chair of the Parchment 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.

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

DSBA OFFICE, T: 01 670 6089 F: 01 670 6090 E: maura@dsba.ie DX 212011 W: www.dsba.ie ADVERTISING ENQUIRIES Caron Flynn T: 01 707 6022

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

WHEN YOU HAVE FINISHED WITH THIS MAGAZINE PLEASE RECYCLE IT.

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Winter 2017

Contents 6

20 Minutes with....... Killian Morris Killian Morris talks to leading medical negligence solicitor Michael Boylan

12

Launch of DSBA Short Term Letting Agreement

16

Cohabitant Rights Refresher

18

The Reluctant Heroine

26

Jury Surfing

The last topic we did was climate change. I never had any interest in it before, but I found it absolutely fascinating page 18

CROSS EXAMINED... MARY LAFFOY

Jackie Buckley gives an overview of the new DSBA precedence

Keith Walsh provides a reminder of the rights available to qualified cohabitants

Stuart Gilhooly meets retired Supreme Court judge and Chair of the Citizens’ Assembly Mary Laffoy

Joe O’Malley says jury trials have become cauldrons of volatility where there is adverse reportage on the internet about an accused person

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

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Winter 2017 dsba.ie

Contents

REGULAR FEATURES 01 Editor’s Note 04 President’s Message 52 In Practice 54 DSBA News 58 Photocall 64 Closing Argument

06 32

A Day in the Life of the AG Kevin O’Higgins spends time with our new Attorney General, Seamus Woulfe, SC

36

Contractual Interpretation Mark Heslin assesses the ongoing challenge for solicitors with contractual interpretation

36 40

Job Hunting

44

The Secret life of John

48

The Mediation Act 2017 - What Solicitors Need to Know

Flor McCarthy takes an alternative look at how we as solicitors, can innovate and improve how we serve our clients

Julie Doyle speaks to solicitor John Neville about his thrilling adventures from Everest to Dun Laoghaire

Valerie Shaw reports on the longawaited Mediation Act which was signed into law by the President on 2nd October 2017

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Message from the President

The Year Ahead

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s newly elected President of the Dublin Solicitors’ Bar Association, may I welcome you, our members and readers, to this 2017 winter edition of the Parchment magazine. Now in its 82nd year, the DSBA continues to grow as Ireland’s second largest representative body for solicitors. Our focus this year continues as before, to provide services and information that assist our members in their practise of the law and to represent our members in the public space on issues of concern to legal practitioners. In that regard whilst one must pay regard to consumer interests, in its submissions on the Legal Services Regulation Act 2015 the DSBA has consistently referred to the “better balance” principle applicable to the provision and consumption of legal services, being one of the stated objectives of that Act. When faced with the raft of regulations and costs to which we are subject in order to practise as solicitors, with little enough in return, we are entirely justified in asking the question sometimes – where is the balance? During 2018 we shall continue our advocacy on the Legal Services Regulation Act 2015 on all the topics that matter to solicitors including business structures, legal costs, practice complaints, regulatory fees and education. We continue to foster an excellent CPD programme and to provide high quality seminars on legal topics of interest. We thank our members for their ongoing support for our seminars which is greatly appreciated. In the last year the DSBA commenced a review of its precedents for practitioners, as to which great work has been undertaken in that regard to date. The Conveyancing Committee has recently launched two new precedent letting agreements, one residential and one business. Other precedents are planned for launch in 2018, as to which more anon in due course. Our Parchment magazine was nominated in three National Magazine Award categories for 2017 – for best magazine, best editor and best cover. This is a great achievement and a tribute to all the hard work undertaken by our Parchment team. Turning to DSBA social and other events, we held in November a black tie dinner to thank our immediate past President Aine Hynes for all her work as President last

year. Aine was a credit to the DSBA and to the legal profession. We also held our annual dinner for the managing partners of the larger law firms in Dublin, this year kindly attended as guest of honour by the Minister for Justice and Equality, Charles Flanagan, TD. We attended in early December at the Mansion House to present the Lord Mayor of Dublin with the annual DSBA charitable contribution to the Fuel Fund for the poor of Dublin, and for an increased amount this year. In January 2018 we will be holding our annual dinner for the judiciary, an event we are delighted to host and as a thank you for all the support we receive from many judges for our activities in the DSBA, especially our seminars. We also plan to reactivate early in 2018 the popular annual social gatherings of our members who practise on the northside of Dublin and the southside of Dublin respectively, with details to be advised shortly. We are pleased to advise that the 2018 DSBA annual conference will be taking place in September in the beautiful city of Venice, Italy. The conference is now open for booking should you wish to join us for the conference,

as to which please refer to the advertisement contained in this issue and the full details set out on the DSBA website. Hopefully thoughts of Venice will put you in a state of good cheer as we approach the festive season! For all of the above we must also thank our great team at head office – our CEO Maura Smith, Elaine Bracken and Anna Healy. Their work tirelessly behind the scenes turns the wheels of the DSBA – and all with good humour. Finally, we without doubt live in a time of uncertainty. In our legal practices we face not just old challenges, such as increased costs and staffing, but also new challenges – as diverse as new legal regulation, Brexit, cyber crime and even artificial intelligence. We will as a profession no doubt, rise to the old and the new challenges, and through mutual support and representation, meet those challenges. The DSBA will be there for its members, as before, in good times and bad. May I wish you all a great year ahead, and to begin with a very merry and happy Christmas. Robert Ryan, DSBA President

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Winter 2017 dsba.ie In conversation with Killian Morris, partner at AMOSS Solicitors

20 Minutes With...

The Fearless Advocate Michael Boylan is one of the country’s pre-eminent medical negligence solicitors who has been involved in many of the leading cases in the area over the past 35 years including Dunne –v- National Maternity Hospital. He is the author of an award-winning book on the topic and has been involved in a myriad of other high-profile cases in this area of the law over the last four decades

When did you qualify? I qualified in the middle of a terrible recession in 1981 when unemployment was nearly 20%, and this was even higher for newly qualified solicitors. However, as a parchment cost 100 Irish pounds, and I was only earning 12 pounds per week at the time, I couldn’t afford to pay for it until the following year. This suited me very well, as it meant that I qualified the same year as my best friend and partner Gillian. If you hadn’t become a solicitor what would you have done? I have no idea. I completed a B Comm in UCD. Many of my college friends ended up with careers in accountancy which I was definitely not cut out for. I met Gillian in UCD and picked up one of her tort books one day. I read a couple of chapters and realised law was far more interesting. Have you any funny anecdotes from your time as a trainee/apprentice? I remember my first day as an apprentice (as we were called in prehistoric times). I was sent down to the family law court urgently to attend on counsel. I had no idea what I was doing. We were acting for the husband in a

long running, contentious family law dispute over access to his young daughter. The wife had brought an urgent application to have the husband committed to prison for breach of a court order for his delay in returning his daughter, following access for a long weekend. I had never been in court before and was very taken aback with the glaring filthy looks the opposing counsel was giving me during his submissions. Every time he mentioned the husband by name, he glared aggressively in my direction. I wondered whether I was cut out for a career with this level of hostility – which I thought must be the norm. I started glaring back at him with as much malice as I could muster. Only when the application was nearing completion, did it dawn on me that the other counsel – who was in fact an inexperienced devil trying to impress the very attractive wife – had mistakenly believed that I was the delinquent husband, which explained his hostility! If we asked your best clients to describe you – what would you expect/hope they might say? I really don’t know. My hope is that they

would say I was an honest straight dealer, had their interests at heart, had integrity and was competent. Counsel sometimes tell me that I am dogged, obsessive and a bit of a perfectionist. I think all of these qualities are essential if you are going to be a successful lawyer. A healthy dose of optimism and courage also helps a lot with the type of work I do. What was your most memorable moment in practice? “You are only as good as your last case” as they say, so, on that rationale, maybe the case I have just finished. It was a birth injury case and we eventually got a hard fought settlement of €15m for a catastrophically injured four-year-old boy. I turned down an offer of €13.5m made the week before trial, when liability was still in issue, as I felt strongly that the defence case was very weak. As a consequence, the State folded and eventually, was forced to give us the €15m, that we had long since decided was a fair settlement figure. Earlier this year, after a six-year battle through multiple taxation hearings, High Court, Court of Appeal and Supreme Court, the Parchment 7

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Photography: Bryan Meade

Clearly as skilled professionals, we really need to stop apologising for charging people decent fees for our skilled work I had a very satisfying victory in the case of Sheehan v Corr on an issue of general importance, and close to many lawyers hearts, namely the correct legal principles to be applied by the taxing masters when assessing solicitors’ and barristers’ professional fees. The case of Dunne v National Maternity Hospital from 1988 stands out as a landmark case for me personally and remains today an important case for lawyers in daily practice. It was the first ever birth injury case brought in this country. Back then, Ireland was a very conservative and closed society and we truly were made to feel that we were acting in a subversive manner, in seeking to impugn the professional reputations of the Irish medical establishment. The first trial in July 1988 was the last ever personal injury case tried before a jury in Ireland and resulted in the jury finding that the hospital’s “general and approved practice” of heart monitoring was “inherently defective” and awarding then record damages of over 1 million pounds. The case was front page news for weeks at the time - it ran for 44 days between the two trials and appeal, before it finally settled in the plaintiff ’s favour. I was only six years’ qualified at the time and I really hadn’t a clue what I was doing, when I look back at it now. The only saving grace was that none of the lawyers on either side of the case really knew what they were doing; because nobody had ever run a birth injury case before and all were totally ignorant of the medical issues. On the eve of the trial, I remember having to plead with one of my crucial English medical witnesses, who had threatened to cry off, to actually give his evidence. He had been quite spooked when he received a phone call from a senior member of the Irish medical establishment who warned him off giving evidence. It had been explained to him that if he did, he would be inadvertently participating in an IRA plot to subvert and undermine an institution of the State (the caller had alleged that members of the plaintiff ’s family were “Provos”). I managed to persuade my expert that this was pure bullshit. It seems a completely bizarre notion now, but I can remember back then; the country was on the cusp of anarchy, the hunger strikes had not long finished and the Provos were still running a lethal bombing campaign in English cities. The episode just goes to show how threatened the medical establishment felt about their professional practice being

subjected to any outside scrutiny by the courts. Things, thank god, have changed for the better now but I believe that there is still a major problem with lack of access to justice for many patients, who are victims of medical accidents. Describe your ideal client? A client who needs help, relies on your skill, judgement and advice and is grateful when things work out well for them. There have been significant public disquiet surrounding legal costs in medical negligence litigation. Are reforms required? Clearly, as skilled professionals, we really need to stop apologising for charging people decent fees for our skilled work. We should expect to be paid decent fees for our work if we do a proper job for our clients. Certainly in my experience, with the type of specialist litigation service I have provided to clients down through the years, people rarely decide to employ a solicitor to represent their interests in complex legal matters because they are the cheapest. Invariably, clients employ a solicitor to represent them because they believe they are very good at their job. As Lord Bingham once famously said “just like the plumber or electrician, the lawyer is entitled to be paid for his work”. The problem is that litigation is labour intensive, often a highly skilled and a bespoke client service is provided, and not everyone is qualified to do it. So by definition it is likely to be expensive. Costs would be saved by a “culture change” to stop the defendants, the HSE and or the State Claims Agency putting up ridiculous unmeritorious defences and holding liability in issue until the last minute before trial. The culture of defend and deny has bedevilled the entire area forever. It has to stop. Patients are entitled to honest, open communication from their doctors when medical errors occur. Is the proliferation of negligence claims arising from any particular systemic issues in the Irish health system? Are there steps that the Government and HSE should take which might immediately reduce the number of incidents giving rise to causes of action? I absolutely reject the notion that there has been an explosion of medical negligence litigation. The statistics just do not bear that out. The Department of Health has accepted, over a decade ago, that probably 4% of all patients are seriously injured in Irish hospitals as a result of preventable

medical errors; that’s at least 80,000 people. The head of the Irish association of A&E Consultants has said that as many as 500 people die each year in Irish hospital A&E departments alone, as a result of the failure to treat patients within the HSE’s own six-hour triage guidelines. Recently, the EU published a report estimating that as many as 4,000 patients die annually in Irish hospitals as a result of “lack of effective health care”. Yet there are less than 1,000 claims for medical negligence initiated in the High Court annually – this is a tiny fraction (2%) of the total numbers who have been injured as a result of substandard care. Patients are extremely reluctant to sue their doctors and most solicitors don’t want to practise in this area because it’s difficult and high risk versus the reward. To make it viable, the solicitor simply must know the right cases to take and identify these cases quickly. Secondly, I have always been amazed at the way acute hospital admissions are organised, the patient is often first seen by the most junior member of the team, a senior house doctor who is expected to diagnose and treat a patient often without the benefit of crucial test results, and has to quickly screen very sick patients in need of urgent lifesaving care, from the patients who are not so ill. The patient may not be seen at consultant level for many crucial hours or perhaps days, if the admission occurs at a weekend. This to me seems crazy and defies logic. It’s like expecting a trainee or newly qualified solicitor to see a new client who arrives at your office unannounced with a complex legal problem and expecting them to provide sound competent specialist legal advice and an instant legal solution. We don’t organise our solicitors’ practices in that way; if we did, we wouldn’t be in business very long. We have seen Irish solicitors acting against each other and giving expert evidence in professional negligence actions. Are Irish doctors following suit? It’s completely wrong that injured patients must go to the delay and expense of engaging UK experts because it is so difficult to get an Irish doctor to agree to give critical evidence against an Irish colleague. The Irish medical establishment has a disparaging nickname for UK experts who give evidence for plaintiffs – they are colloquially known as “seagulls” because they “fly over here shit all over us and fly off again”. This is most unfair, where would we be but for the fact that UK doctors have been willing to give evidence in Irish courts? Thankfully, I now see signs of this attitude changing and we are beginning to see a younger generation of Irish doctors who are willing to speak up when they see treatment which is manifestly poor. I think the concept of “a duty of candour” has encouraged more

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Winter 2017 dsba.ie

20 Minutes With...

Irish doctors to be open to the notion of appearing in court for plaintiffs. Briefly outline a typical day in the life of Michael Boylan I hate to waste time in rush hour traffic. On a non-court day, I get up about 7.30, start to work from home about 8.30am answering emails or making phone calls. I leave for the office at about 9.30am after the worst of the traffic, often making easy phone calls on the commute. Arrive in Dublin office at 10.15. If I have court, obviously I try to be at the Four Courts for breakfast at 8.30am and start a pre-trial consultation at 9.30am. I take a very short lunch break often at my desk. I work until about 6.30pm and then leave the office. I have dinner at about 7.30pm and relax. If I have a lot of work on, I do some work reading new files, transcripts, expert reports or medical records for an hour or two from 10pm until midnight. What do you think is the biggest challenge currently facing the solicitors’ profession? The biggest challenge facing the profession is being able to continue to adapt and to

keep up with the exponential pace of change brought about by new technology. The solicitors’ profession has survived so far, as it has shown itself incredibly flexible and willing to embrace change. However, we must be reaching a point where the human brain will not be able to absorb and cope with the information being thrown at it, at an ever increasing volume and speed. When I started practice, the internet didn’t exist, nor the word processor, the mobile phone, iPad, email or even the fax machine. You had more time to pause for thought and consider problems. Now the pace has quickened to such a degree and the volume of documentation stored and transmitted digitally is so vast, it truly is beyond the scope of solicitor firms to review, in detail, all of the documents being sent. Describe an event in your personal life which has had the most impact on your development as a solicitor? Meeting my best friend Gillian O’Connor in UCD in 1976 and marrying her in 1984. What would be your dream holiday?

Long distance air travel is a tad off putting. However, I have always hankered to make the US Pacific Coast road trip along the “Big Sur drive” from San Francisco to LA, place names like Monterey, Carmel by the Sea, Bixby Bridge, Big Sur, Lucia, Ragged Point and San Simeon seem to have a magical allure to them. Describe the perfect night out? Dinner in a nice restaurant with good friends. Something most people don’t know about Michael Boylan? I enjoy hunting. Trying to concentrate just on staying in the saddle for the day is the best possible antidote for any stress caused by work worries. Any advice for those entering the profession in 2018? You hold a privileged position and, with that privilege comes duties and responsibilities. Try to use your skills to help solve others’ problems. Be prepared to work hard to get ahead. If you enjoy what you do, it is fun, very rewarding and doesn’t seem like work at all. P the Parchment 9

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News

DSBA Dinner to Honour Minister for Justice and Equality, Charles Flanagan DSBA President Robert Ryan hosted an evening to honour Minister for Justice and Equality, Charles Flanagan, TD on 30th November 2017. An invitation was extended by the DSBA President to the managing partners of the larger Dublin firms to this annual event which took place at the Stephen’s Green Hibernian Club

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14/03/2017 15:33 28/11/2017 10:28


Launch of DSBA Short Term Letting Agreement The DSBA recently launched its short-term letting agreement for 2017 which should assist practitioners as a useful precedent. We are all too familiar with the scenario where we are either on the giving or receiving end of a 40-page lease to govern what is essentially a short-term arrangement. Jackie Buckley gives an overview of the new DSBA precedence

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hilst the new DSBA 2017 letting agreement is a useful tool, it is not one that can simply be rolled out without giving it any further thought. I set out below a list of the issues which I suggest you raise with your client so as to reach a decision in relation to whether or not substantial amendment is needed to the shortterm business letting agreement. It is also important to bear in mind that the agreement is for very short-term lettings only. The agreement is also drafted on the basis that the letting has been made for the temporary convenience of the landlord and tenant. Whilst this may certainly be the case for a letting which is under one year, after one year it becomes more difficult to make the argument that the letting is, in fact, temporary. Each practitioner must reach their own decision in relation to whether or not this document is suitable for use for lettings under the three-year period which are not temporary in nature. It is also important to factor in any previous occupation or letting granted to the tenant or the predecessors in title and take the appropriate steps to prevent the tenant from acquiring landlord and

tenant rights, by having a renunciation executed if relevant.

Agreement 1. Who is the landlord? Make sure you have the correct entity. 2. Who is the tenant? The usual checks should be done to verify that the tenant is a good mark for the rent and payments under the letting agreement. 3. Who will be the guarantor? Consideration should also be given to having the guarantor independently advised. Bear in mind that the guarantor needs to execute the agreement in two places. 4. What premises form part of the demise? Is it a standalone property with access out on to a public road or path, or is it part of an estate or building? If it is part of an estate or building then appropriate clauses need to be built in, dealing with access to the premises and also the provision of services and insurance. 5. What is the permitted user? If acting for a landlord who does not have the appropriate planning consent or if you are simply not aware of what the permitted use is under planning laws, consideration should be given to inserting the usual clause that no

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Winter 2017 dsba.ie Jackie Buckley is a partner and head of the property team at Hayes Solicitor

Landlord & Tenant

Left to right: Tony O’Sullivan; Ronan McLoughlin; Robert Ryan, President of DSBA; Jackie Buckley at the launch of the DSBA’s new short term letting agreement precedent

warranty has been given by the landlord in relation to use. 6. What is the term of the letting? Consideration should be given to the issues raised above. Is this really a short-term letting? 7. What is the rent payable and how is it payable? If it needs to be paid by standing order, cheque, EFT, it is best to state this. You should also note the reference to the fact that VAT is payable at the appropriate rate. This will be discussed in more detail below.

First Schedule 1. If the premises is part of a building, then it would be appropriate to leave in the definition for “building” and complete it. Alternatively, if the premises is part of an estate the definition of “building” should be replaced by a definition for the “estate”. 2. The definition of “premises” includes any rights, easements and privileges, if any appurtenant to the premises. However as stated above, if the premises is comprised within a building or an estate it is important to include the right to pass and repass over any relevant parts of the building or the estate as is necessary, in order to acquire access to the premises. 3. The agreement has been drafted on the basis that

it is a letting for the temporary convenience for the landlord and tenant. It is important that this is specifically set out in the letting agreement at First Schedule, Clause 2 and that it is one which is capable of standing up to scrutiny. A sham will be easily challenged. 4. Furniture and fittings which are included within the letting should be set out at Clause 3. 5. The standard right of re-entry is included at Clause 4. If it is important for your landlord client that they would want the ability to take back the property if the tenant had entered into a personal insolvency arrangement, or a receiver was appointed over either the assets or the tenant or the premises, then this clause should be amended.

Second Schedule 1. It is assumed that the tenant will pay rates in addition to rent. Details of the rates should be set out at Clause 1.1. 2. The agreement is drafted on the basis that interest will be charged should payments not be made within 14 days of the due date. The interest rate should be included at 1.2 and should be one that is not penal. The landlord and tenant agree

It is important to give consideration as to what the tenant’s repair obligations will be and the clause adjusted accordingly

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Right: Freddie Alexander, Rutherfords; Stuart Creavin, Creavin & Co Far right: Darach Connolly, Darach Connolly Solicitors; Ken Morris, Daly Lynch Crowe & Morris

Left: Neil Dunne, Byrne Wallace; Caroline Matson, Byrne Wallace Far left: David Soden, David Soden Solicitors; Noreen Kavanagh, Matheson

that the rate of interest represents a genuine preestimate of the landlord’s losses. 3. Clause 1.4 deals with the payment of insurance. It is important here to either set out the amount payable if it is in respect of an entire building, or the percentage of the total premium that the tenant is responsible for, if the premises is comprised within a building or an estate. Alternatively, if it has been agreed that a fixed insurance premium is payable for the duration of the letting, this fixed amount can be inserted here. 4. Careful consideration should be given in relation to whether or not the tenant is responsible for the payment of any service charge. Once again, if the premises is comprised within a building or an estate and a service charge is payable, consideration needs to be given to how this is reflected at Clause 1.7. As it is a short-term letting, if a cap or a fixed amount has been agreed for the duration of the letting, this can be inserted instead. 5. It is important to give consideration as to what the tenant’s repair obligations will be and the clause adjusted accordingly. As it is a short-term letting, we believe that in most cases, repair of the interior will be the extent of the tenant’s obligation. The tenant

will also have an obligation to maintain the interior of the premises in good decorative condition. In some cases, a Schedule of Condition could be incorporated into the letting agreement. Once again, it is important to understand how the tenant intends on handing back the premises and how the landlord wants to take it back. Attaching a Schedule of Conditions sets a bar for a decorative standard that the property must be in when the tenant hands it back but there is no fair wear and tear exception, unless one is expressly included. 6. Clause 3 deals with insurance. It includes an obligation on the tenant to ensure that he/she has public liability insurance in place. You may also want to include an obligation on the tenant to insure their own contents. 7. Point 4.14 deals with the tenant’s yield up obligation. If a Schedule of Condition has been attached to the letting agreement it would be prudent to refer to it in this clause, and to state that the tenant is not under any obligation to hand back the property in any better condition than is set out in the Schedule of Condition. 8. Tax is dealt with at Clause 5. It is extremely

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Winter 2017 dsba.ie

Landlord & Tenant

Photography: Michael Finn

Right: Sorcha Rooney, Dunnes Stores, Shona Madden, Madden Law Far right: Pauline Horkan, Dillon Solicitors; Sarah Flynn, Corrigan & Corrigan

Above: David Phelan, Ronan Daly Jermyn; Matthew Ryan, Ryan Solicitors Left: Måire Cunneen, Cunneen McCarthy; Malachy O’Callaghan, Duncan Grehan & Partners

important that this is addressed by both the landlord and the tenant prior to signing the letting agreement. The VAT clauses must be tailored to suit each particular set of circumstances. The VAT clauses set out in the letting agreement are not intended to be a set of VAT clauses that will work in all cases without consideration.

Third Schedule 1. Consideration needs to be given to the landlord’s repair obligation. If the tenant is only responsible for the interior, who is responsible for the exterior? Rather than the landlord agreeing to maintain and repair itself, it may be agreeing to procure that a superior landlord or management company will do so. The clause should be adapted accordingly. 2. The same applies in relation to insurance. It may be the landlord who is insuring or it may be a superior landlord or management company. Once again, this needs to be stated. 3. Consideration needs to be given to what the parties would want to happen if either the premises were destroyed or damaged, or the building or the premises were not accessible. It may be the case that

it suits for both parties to be given an automatic right to terminate the letting agreement. 4. Consideration also needs to be given in relation to whether or not the landlord is providing any services or procuring that a management company or superior landlord does so. Once again, this is not included in the precedent and should be included, if required.

Conclusion It is never possible to provide a precedent letting agreement where one size fits all. Every property and every set of circumstances is different. There is also a balance between keeping what is meant to be a shortterm arrangement simple, yet making sure that each party is protected. It is important that each of us give careful consideration to this when deciding how the agreement should be supplemented to best suit our clients. The precedent DSBA business letting agreement can be purchased by contacting Maura Smith at the DSBA Office on 01-6706089 or email: maura@dsba. ie. In addition, the recently launched DSBA residential letting agreement precedent is also available to purchase from the DSBA. P the Parchment 15

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Cohabitant Rights Refresher Keith Walsh provides a reminder of the rights available to qualified cohabitants and sets out the applicable time limits in light of the recent Court of Appeal decision in M.W. v D.C. [2017] IECA 255 Background The Civil Partnership and Rights and Certain Rights and Duties of Cohabitants Act 2010 introduced entirely new rights for cohabitants when it was commenced on the 1st January 2011. Couples who met the criteria were automatically cohabitants but in order to seek relief arising from these rights the cohabitant must apply to the courts and prove: • that they were in an intimate and committed relationship • that they were qualified cohabitants • financial dependency on the other cohabitant and that financial dependence arises from the relationship or the ending of the relationship (financial dependency is not required when seeking provision from the estate of a deceased cohabitant where the relationship lasted to the death of the cohabitant) • it would be just and equitable for the court to make an order for redress in all circumstances. A cohabitant is defined as ‘one of two adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other’. In deciding whether the couple were cohabitants the court must take into account all the circumstances of the relationship and must have regard to a list of factors. A qualified cohabitant is ‘an adult who was in a relationship of cohabitation with another adult and who, immediately before the time that that relationship ended, whether through death or otherwise, was living with the other adult as a couple for two years or more where they are the parents of at least one dependent

child or five years or more’ where no children – Section 172(5). The reliefs available for ‘qualified cohabitants’ are maintenance – both periodic and lump sum, property adjustment orders (but not an order for sale – separate proceedings pursuant to section 31 of the Land and Conveyancing Law Reform Act 2009 must be issued), pension adjustment orders and provision from the estate of a deceased cohabitant. Where financial dependency is a prerequisite for relief (maintenance, property adjustment and pension adjustment orders) then if the applicant has an income and is able to support themselves independently they will not be considered dependent according to Fergus Ryan in his commentary on the 2010 Act.

Periods of Limitation re: cohabitants • Two or five year time limit re: a qualified cohabitant Section 172. The Court of Appeal recently clarified in M.W. v D.C. [2017] IECA 255 that a person must be a cohabitant of the other adult within the meaning of s.172(1) during the entirety of the period of two years or five years immediately before the time when the relationship upon which the claim is brought ended. It is a single period of two (or five) years immediately prior to the ending of the relationship in respect of which the claim is made and the period may not be made up of periods aggregating or amounting to two (or five) years. • Six months after the grant of representation is extracted is the absolute time limit for a qualified cohabitant to apply for provision from the estate of the deceased cohabitant - Section 194(1). There is no provision for extension of this limitation period in

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Winter 2017 dsba.ie Keith Walsh is chair of the Family & Child Law Committee of the Law Society and is a past chair of the DSBA Family Law Committee

the Act. Nor is there any provision that the surviving cohabitant must be notified of the making of the grant or the time limit. • Two years is the longest that a relationship can be ended before the death of the cohabitant if the surviving one wishes to apply for provision from the estate unless certain orders had already been applied for or were made or the survivor was in receipt of maintenance from the deceased cohabitant whether by order or otherwise see section Section 194(2) {and subject to the claim being made within the six months of grant of representation above}. • No time limit – if compensatory maintenance orders or pension adjustment orders were made, these can be reviewed at any time pursuant to section 173(6) of the Act where there is a change of circumstances. • 12 months for guardianship -– Where the cohabitant is the father of the child and has lived with the mother for more than 12 consecutive months he will be appointed guardian if he can prove this period of cohabitation section 2(4A) & 6F of the Guardianship of Infants Act 1964. • Three years for guardianship with at least two of those sharing parental responsibility – Where the cohabitant is not the father but has been a cohabitant of a parent of the child for over three years and has shared day to day care with that parent for a period of more than two years then he or she may apply for guardianship. This new right is inserted into section 6C of the Guardianship of Infants Act 1964 by section 49 of the Child and Family Relationships Act 2015 Act. A cohabitant can apply for guardianship where he or she is over the age of 18 years and on the date of the application, he or she has been for over three years

a cohabitant of, a parent of the child, and has shared with that parent responsibility for the child’s day-today care for a period of more than two years. • Three years for custody application with at least two of those sharing parental responsibility – This new right is inserted into section 11E of the Guardianship of Infants Act 1964 by section 57 of the 2015 Act. Where the cohabitant is not the father but has been a cohabitant of a parent of the child for over three years and has shared day to day care with that parent for a period of more than two years then he or she may apply for custody.

Time for Reform? Ireland has one of the most progressive regimes for cohabitants in the world. However there are problems with our system. 1. This area of law is not used. Although there are thousands of qualified cohabitants, very view exercise their rights in the courts, less than 50 per annum in Dublin. A public information campaign is long overdue. 2. This area of law is difficult to find and understand for lawyers and laypeople leading to a lack of engagement, e.g. see variety of time limits above, variety of statutes. 3. The lack of mandatory notification of the surviving cohabitant of the extraction of a grant of representation is unacceptable and unfair and must be changed. 4. Although applications under the 2010 Act are heard in camera, if cohabitants wish to seek a sale of property they must apply (by separate proceedings) in open court pursuant to the Land and Conveyancing Law Reform Act 2009. P

Family Law

In deciding whether the couple were cohabitants the court must take into account all the circumstances of the relationship and must have regard to a list of factors

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Winter 2017 dsba.ie Stuart Gilhooly is a former President of the Law Society and DSBA. He is a partner at HJ Ward Solicitors Harold’s Cross and former editor of the Parchment

Cross Examination

The Reluctant Heroine When Mary Laffoy was the only woman in her King’s Inns class to be called to the Bar in 1971, she couldn’t have predicted that she would leave legal life some 46 years later regarded as one of the finest jurists of her generation. A career that spans that full panoply of achievement from neophyte junior to Supreme Court grandee has seen her appointed as Chair of the inaugural Citizens’ Assembly. Stuart Gilhooly met a shy and retired Mary Laffoy to talk about how she got there and what the future holds

I

was the only one without a note. It was the Attorney General, Seamus Woulfe’s first outing since his appointment and both he and Paul McGarry, SC, the chairman of the Bar, had nicely typed speeches. The Law Society President is always third to speak. There’s rarely much left at that point so it’s easier to speak from the cuff, say something they hadn’t. When Mary Laffoy stepped off the legal rollercoaster last June to return to the more sedate carousel of the real world, the praise for her legendary judgments, her famously courteous manner and remarkable intellect was being showered in predictable abundance by my learned colleagues.

There were very few women. I was possibly the only woman that went in that year. Susan [Denham] was in the same class but she went to the States for two years

Some judges don’t like the valedictory speeches, they find it all a tad embarrassing and a little bit forced. Mary Laffoy was visibly uncomfortable at the attention and gushing bouquets but it was obvious the love was genuine, the compliments heartfelt. As usual, the solicitor rep gets the breadcrumbs so I decided to go down the feminist icon route. Not a road well-travelled in Supreme Court valedictories but a truism if you open your mind. If any young female lawyer needed a role model, it was sitting patiently, politely and brilliantly for 22 years on the superior court benches. As self-effacing and humble as the day she first set foot in the Law Library, the the Parchment 19

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I wasn’t keen on doing personal injuries because I had no experience of it. I also really thought I should only do civil law so I didn’t even think about criminal law. In personal injuries, I wasn’t worried about liability but it was on quantum, I hadn’t a clue. I was sent to Galway shortly after I was appointed in 1995. I did my best to do my homework on quantum but I wasn’t confident” dreaded, creeping disease of judgeitis was kept firmly away. Although still chairing the Citizens’ Assembly, she is now easing into a life without judgment deadlines and life-changing decisions weighing on her mind and she accepts the invitation to talk to the Parchment without hesitation. As I enter the vast and immaculately kept drawing room, the large coffee table has several neat piles of books almost screaming to be devoured. The eclectic collection includes a book on high crosses in Ireland and the topical subject of Patrick Kavanagh. A lifetime of not having enough time to read

is to be replaced rather soon by one where she will have all the time in the world. Not quite yet though. The Citizens’ Assembly has to be chaired and as always, there is only one way she knows how to do it. The right way. The conscientious way. As with many of her callings along the way, she didn’t seek it out, it came looking for her. “I got a phone call from the Government and they asked me to do it.” While she understandably won’t talk about the most controversial subject not just in the Assembly but probably in the whole country, the Eighth Amendment, her face lights up as she delves into the other work they have been doing. “The last topic we did was climate change. I never had any interest in it before, but I found it absolutely fascinating.” There are still two modules to go, one on how we conduct referenda and the other on fixed-term parliaments and she is confident that the work of the Assembly won’t go the way of many other bodies over the years and be placed neatly on a Government shelf gathering dust. “What is really astounding is how engaged [the Assembly] they are throughout the process which I find amazing. I would be hopeful that the recommendations will be taken on board. One thing that is very important is that we have invited very good speakers and they have given us very interesting presentations. We are publishing everything. I’m amazed at the quality we have to publish.” It’s no coincidence that Government has asked Mary Laffoy to chair it. They didn’t pick her name out of a hat or decide she was of the right political persuasion. They picked her because she is the archetypal ordinary citizen who also happens to have a brilliant legal mind. More importantly though, she has a humility and humanity which aren’t to be found in all leaders. Her childhood, while apparently happy, is one of relative upheaval and may give

insight into her unassuming manner. Born in 1945 on Dublin’s North Circular Road, she lived the first seven years of her life in Manorhamilton before moving to Swinford. As she was finally settling down, her father died of Hodgkinson’s Disease and her mother was forced back into the workplace as the Civil Service had no widow’s pension in 1959. This brought her back to Dublin where her mother worked in Portrane and she lived in Donabate. There were a few false starts before law came calling. She initially went to Carysfort but didn’t like teaching and then tried the Civil Service but eventually found her way to UCD where she qualified with an arts degree in 1968. Becoming a barrister back then was a little more unorthodox. “In those days, you had to start 2nd BCL class and then do 3rd BCL class in UCD, and then you did an exam in the King’s Inns. The final year was in the King’s Inns”. She was called to the Bar in 1971 and as so many great judges before and since have done, she devilled with another brilliant judge, Brian McCracken. Unlike today, where most lawyers qualifying, be they barristers or solicitors, are women, the percentage of women called to the Bar in the early 70s was tiny. “There were very few women. I was possibly the only woman that went in that year. Susan [Denham] was in the same class but she went to the States for two years.” Being a woman in a man’s world can be difficult enough without sexism, harassment and discrimination but she insists she saw none of this throughout her career. “I never experienced any problems. I didn’t even think of the gender position when I started.” In fact being a woman may have helped. She made a lot of friendships and connections with female solicitors also making their way in what was still predominantly a male profession. She quickly gained a reputation as an expert in property and chancery matters and the decision to take silk in 1987 was an easy one. “It was not a difficult decision. At that stage, I had a very big property practice. That wasn’t going to be affected.” From then until her ascension to the bench, she became the go-to person if a solicitor needed an opinion on conveyancing matters or a counsel in property/chancery cases. After 24 years as a busy senior counsel, the move to the bench was a natural one, if not one she sought out. There was no application process in 1995 and Mary was the last to be appointed before the

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Winter 2017 dsba.ie

Cross Examination

Photography: Bryan Meade

enactment of the Court and Court Officers Act 1995. That saw the introduction of the Judicial Advisory Appointments Board and the reduction of the retirement age from 72 to 70. She, and so many of her colleagues before and since, are a great example of how no matter what the process for selection is, cream always rises to the top. At that point, Mella Carroll and Susan Denham had been the only women appointed to the High Court so it was the start of a movement towards proper gender equality on the bench which remains elusive but a huge improvement on those equality impoverished days. She quickly settled into adjudicating on her expert areas. Chancery and non-jury were her natural habitat and she didn’t feel comfortable elsewhere. “I wasn’t keen on doing personal injuries because I had no experience of it. I also really thought I should only do civil law so I didn’t even think about criminal law. In personal injuries, I wasn’t worried about liability but it was on quantum, I hadn’t a clue. I was sent to Galway shortly after I was appointed in 1995. I did my best to do my homework on quantum but I wasn’t confident. The last time I went out [of Dublin] was when I went to Dundalk and I told the President I didn’t want to go out any more.” After nearly 20 years and having established herself as the head of the chancery list, the High Court’s loss became the Supreme Court’s gain. Again, she didn’t see it coming as yet again higher office found her. “I had never intimated that I was interested. I never had any ambition to do it.” No matter what job she has done, Mary Laffoy has brought a work ethic and a competence to it that few possess. When we meet, she is reluctant to talk up any of her roles and constantly changes the subject to give credit to others. She has a humility that borders on the bashful, yet when authority is required, her natural leadership qualities come to the fore. It’s a rare skill and will be missed. Retirement will be a major sea change. The Citizens’ Assembly will be completed by April and then a different way of life beckons. She loves travelling but it will be hard to switch off. Throughout her career, Government has always asked more of her. Don’t be surprised to see her name attached to the next big inquiry or convention. She may not seek it out but Mary Laffoy is never found wanting. P

Mary Laffoy at a glance

CALLED TO THE BAR: 1971 CALLED TO THE INNER BAR: 1987 APPOINTED JUDGE OF THE HIGH COURT: 1995 APPOINTED JUDGE OF THE SUPREME COURT: 2013 RETIRED FROM SUPREME COURT: 2017

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News

Photography: Pamela Cassidy

Lawyers Raise €21,500 for Homelessness

A

most novel and worthy inaugural event took place at the Capuchin Day Centre on Bow Street on 23rd November 2017. A gathering of lawyers who wished to help the homelessness situation came together for a specially organised CPD. A total of €21,500 was raised on the day and 100% of the proceeds went to the Capuchin Day Centre for homeless people. President of the Court of Appeal, Mr Justice Sean Ryan and Brother Kevin Crowley of the Capuchin Day Centre provided the opening addresses. This seminar is the first in a series of legal seminars hosted by Brother Kevin

Crowley of the Capuchin Day Centre in association with Lawyers Against Homelessness, which is a collaborative effort by members of the bar and the solicitors’ profession. The legal profession is working with the Capuchin Day Centre which will host three legal seminars per year to help Brother Kevin Crowley in his lifelong mission to help the homeless. The aim of each seminar is to bring lawyers up to date on areas of the law which will vary depending on what is topical at the time. In addition, the entirety of the proceeds go directly to the Capuchin Day Centre which hosts meals for up to 1,000 homeless people each day.

Master of Ceremonies for the event was Ronnie Robins, SC – father of the Bar. Judge Michael Coghlan of the District Court was a guest speaker as were the following: • • • • • • • •

Maire Conneely - A&L Goodbody; Gerry Gallen - Beauchamps; Michael Walsh - Byrne Wallace; Clifford Healy - Gore & Grimes; Jan Hayes - Hayes McGrath; Constance Cassidy, SC; Liam Reidy, SC; Edward Walsh, SC.

Further seminars will be organised in 2018 and are open to all members of the legal profession.

Right: Constance Cassidy, SC

Left: Liam Reidy, SC; Mr Justice Sean Ryan and Judge Michael Coghlan. Far left: Clifford Healy; Brother Sean Donohoe; Constance Cassidy, SC; Mr Justice Sean Ryan, President of the Court of Appeal; Maire Connelly. Back Row: Gerry Gallen, Ronnie Robbins, SC; Liam Reidy, SC, and Judge Michael Coghlan Right: Liam Reidy, SC; Ronnie Robbins, SC and Mr Justice Sean Ryan Far right: Brother Sean Donohoe with Eddie Walsh, SC, and Sean O’Huallachain, SC

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DSBA

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Jury Surfing Jury trials have become cauldrons of volatility where there is adverse reportage on the internet about an accused person that will instantaneously be highlighted to the jury upon a mere name search about that person. How can such an accused expect a fair trial in these circumstances? Joe O’Malley examines some international authorities on this issue and looks at how Ireland has dealt with the problem to date

T

he legal challenges posed by the proliferation of data in cyberspace are acknowledged in a general sense, but the practical problems created by the digital age in terms of administration of justice are met with a legal system struggling to cope. This difficulty is illustrated starkly in the daily administration of justice in our criminal courts where the constitutional right of an accused person to have a fair trial may be compromised by prior internet publications about the accused which tend to reflect negatively on the accused’s character. This is particularly problematic where the accused has been convicted of crimes in the past and these details are recorded on the internet and brought to the attention of anyone who conducts a search against the accused. Against that, publishers also enjoy a constitutional right to publish information, particularly where it serves a public interest and this typically covers reporting on matters of political, administrative, judicial or general newsworthiness. In this way, news media act as the eyes and ears of society and bring to their attention matters of public interest that members of society would otherwise be oblivious to. This is an important element of any democratic society. It is also a common feature of internet publications that they leave a permanent record which will be accessible into the future, and this is particularly so with news stories which are archived by their publishers after the original publication is spent.

Byrne v. DPP In this case, the accused faced charges in respect of a tiger kidnapping and sought the removal from the internet of all offending material relating to him

directly or indirectly. In particular, he requested the removal of all published details about the charges that his co-accused faced and their trial which had occurred prior to his trial. He also sought to have the DPP made responsible for such removal. Mr Justice Charleton provided a useful judgment which clearly highlights the dangers and challenges posed by internet publications about an accused and the ability of jurors to link into that information through routine internet searches. He referred to the test established in Rattigan v DPP to determine whether a trial should be prohibited due to adverse publicity. In this regard, he observed: “Where there is a real and substantial risk of an unfair trial due to either delay in prosecution or adverse publicity, which could not be made fair by appropriate rulings and directions of the trial judge and by other circumstances.” He referred to recommendations made by the Law Reform Commission and stated: “The Law Reform Commission, in a consultation paper published in March 2010, is of the view that dangers can arise to the fairness of a criminal trial because some jurors may be tempted to access the internet. It recommends the creation of an offence, to be inserted into the Juries Act 1976, whereby it will be an offence for jurors to conduct independent enquiries outside the courtroom.” He went on to refer to a New Zealand Law Commission Study on compliance by jurors with judicial directions representing a rare and important insight into jury compliance with directions in the modern common law world: “A study by the Law Commission of New Zealand in 1999, reports on the issue of jury conduct in a paper entitled, ‘Juries in Criminal Trials’… These findings strongly support two propositions… Firstly, the paper notes that the passage of time

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Winter 2017 dsba.ie Joe O’Malley is partner and Head of the Commercial Litigation & Dispute Resolution team at Hayes Solicitors. He is a council member of the DSBA

tends to erase any memory which jury members may have of pre-trial publicity. Secondly, it is recorded that juries approach a case in the same way as a judge: they may have heard of the case and indeed, may be interested in it; when however, the case begins to unfold they look at it with a fresh mind intent on discovering what the case is about and whether the standard of proof will or will not be met by the prosecution”. He summed up these difficult issues aptly in the following terms: “The applicant claims that there are special dangers attached to the internet and its abuse during criminal trials by jury members. Undoubtedly that is correct. The dangers identified include that noxious material as to a person’s background, if it exists, can be stored and potentially accessed over a long period of time. Further, juries can be composed, in part, of people who pursue internet searches as one of their ordinary forms of entertainment.” In his conclusions, he believed that the correct solution was to give appropriate judicial directions to the jury rather than embark up on a crusade against the abyss of internet publications: “Fundamentally, however, there is no reason to believe that juries cannot be trusted if appropriate directions are given to them, perhaps coupled with an explanation as to why this is necessary. There is every indication that they take their task seriously and see it, correctly, as an important and elevated public function.” He continued in this vein: “Recently, many judges have also added a warning that they should not surf the internet in relation to any participant

in the case, be they a witness, the judge, counsel or an accused. It could be added that to do so is a contempt of court allowing the imposition of an appropriate, but potentially unlimited, fine or period of imprisonment. Some studies cited during the hearing of this case indicate that juries will be more inclined to heed such a direction if they are told of the reason behind it.”

International Jurisprudence The common law world provides similar protections for accused persons and media organs as exist in Ireland. Therefore, their handling of these issues may be of valuable assistance. The Supreme Court of Victoria has helpfully addressed issues relating to pretrial publicity in similar circumstances in News Digital Media PTY Ltd and Fairfax Digital Ltd v Antonios Sajih Mokbel and DPP. In this case, shortly before the empanelment of the jury for a murder trial, counsel for Mr Mokbel brought to the attention of the trial judge that The Age, the Herald Sun and The Australian newspapers were displaying on their websites material relating to Mr Mokbel which was highly prejudicial of him and to his prospect of obtaining a fair trial. The court at first instance made an order directing News Digital Media Pty Ltd and Fairfax Digital Ltd, who own the above mentioned newspapers, to remove from their websites and to not publish any articles containing reference to Antonios Mokbel. This order was appealed. The court identified the issues as follows:

Litigation

The applicant claims that there are special dangers attached to the internet and its abuse during criminal trials by jury members

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It is undoubtedly a difficult task to find a solution for tackling adverse publicity on the internet about an accused person who enjoys a right to a fair trial

“In the modern environment, the media as the eyes and ears of the general public, plays an important part in this. By the fair and accurate reporting of court proceedings it ensures that the public, who may not be able to attend a hearing, are kept informed of the functioning of the court process. The importance of this principle is such that the making of an order restraining, restricting, or postponing the reporting of a court proceeding or any part of a court proceeding is exceptional and, in general, will be made only where it is necessary to preserve the integrity of the court process, to ensure that the process can function properly, or to protect privacy or confidentiality or very limited kinds…. The public has a right to know about matters that lie within their legitimate areas of interest, and the media has a right to disseminate information, presumably to satisfy this right to know.” They relied upon a judgment of the Scottish High Court in HM Advocate v. Beggs (No.2) which found that, as the impugned material formed part of the archived material available on the websites, it was less available than current material. The publication therefore, did not amount to a prima facie contempt because there was no evidence that a potential juror was likely to access the material; there was no substantial risk to the course of justice. In doing so, the court clearly recognised a distinction between archived material which must be searched for, and contemporaneous publications which are effectively forced on the reader. In its conclusions, the court refused to allow stand, the order requiring the media to cleanse their archives of material relating to the accused and stated: “We respectfully doubt the necessity for making that part of the order requiring the applicants take down the material from their websites provided the articles, the subject of the order, were no longer sufficiently current or were not presented in such a way as to be forced upon a visitor to the site who was not searching for them. We are of the opinion that a juror in this case would not be likely to have inadvertently come across material adverse to Mr Mokbel which was archived and not readily available to such a visitor. Nor do we readily accept that a juror would deliberately set about searching for such material in defiance of the trial judge’s warning and direction. Moreover, if, as the evidence shows, the removal of the offending material did not prevent a determined searcher from accessing the same material from a cached website, it cannot be said that the order was necessary for the protection of the court process with respect to Mr Mokbel’s pending trials… We conclude that the circumstances before his Honour did not disclose a necessity for the making of this part of the internet order.” It is instructive to examine the Beggs judgment which won approval by the Australian Courts, in this context. In this case, the accused faced an indictment containing allegations of assault, sodomy and murder. At the conclusion of proceedings on the first day of the trial, counsel for the accused brought to the court’s attention certain material which he stated was a matter for concern. Among this material were to be found articles from the website of the Guardian newspaper, which contained material of an inappropriate nature, including references to the

previous convictions of the accused and also to the previous conviction for murder of the accused, which had been quashed on appeal. The material also contained prejudicial extracts from an internet publication entitled Gay Today, emanating from the USA and material appearing in the website of the Sunday Times newspaper which material referred to the accused as the ‘gay ripper’. The court referred to Attorney General v M.G.N Limited and stated: “Applying the principles set out by Schiemann L.J. in the case mentioned, it was necessary to assess the likelihood of the publication concerned coming to the attention of a potential juror. In the present case it was wholly a matter of speculation as to whether any material might come to the attention of the juror. A juror would require to undertake the search of newspaper archives in order to access the material. The likelihood of such an exercise being undertaken was extremely remote.” Lord Osborne stated the conclusions of the court in the following terms which focused on distinguishing archives from other material available without searching for it: “As was pointed out by the Advocate Depute, the material concerned was originally published in December 1999 and, although still accessible, is accessible only in the form of archive material forming part of the information available at the websites of the publications concerned. It appears to me that the availability of the material as part of an archive, as opposed to part of a current publication renders it less likely that it may come to the attention of a juror than would be the case if it formed part of a contemporaneous publication.” He went on to indicate, in a similar way to Justice Charleton in Byrne, that the correct solution was to ensure appropriate directions were given to the jury: “At the commencement of the present proceedings I took pains to direct the jury that their ultimate decision would require to be based upon the evidence which they hear in the court’s proceedings, and not upon any extraneous matter which might come to their attention. In due course, that direction will be repeated when the time comes for me to charge the jury. I have no reason to suppose that the jury in the present case will not follow that direction. The system of trial by jury depends upon confidence being placed in juries to follow directions which they are given.”

Concluding Remarks It is undoubtedly a difficult task to find a solution for tackling adverse publicity on the internet about an accused person who enjoys a right to a fair trial. The international authorities and the limited judicial commentary on this issue in this jurisdiction favour dealing with the matter by appropriate directions to the jury and avoiding a potentially impossible task of cleansing the internet. In doing so, the authorities appear to distinguish between archived material which must be actively searched for, and contemporaneous reporting which is forced upon a reader. However, our jurisprudence on the issue is very much at an early stage and it would greatly assist practitioners, judges, accused persons and publishers alike to have solid guidance and principles of general application to operate from in future cases. P

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Noreen Maguire is principal of Maguire Muldoon Solicitors and is a member of the DSBA’s Family Law Committee

Family Law

Family Law Code of Practice 2017 Noreen Maguire assesses the latest edition of the Law Society’s Family Law Code of Practice and its message of conciliation, responsibility and thinking long-term

As solicitors, we are trained to think of one side versus the other, often referring to the other party in letters as ‘the other side’ obviously, this is never appropriate in a family breakdown situation

H

aving worked in family law for almost 20 years, I am acutely aware of how complicated an area of law it can be. Indeed, I have long felt that family law is not suited to everyone, as it requires clarity, patience and, most of all, sensitivity. Family law practitioners deal with extremely emotional clients who are going through traumatic life events. It makes complete sense that any professional dealing with such a complex and emotionally charged area of law should have a guide or reference point to assist them. The latest edition of the Law Society’s Code of Practice ensures that solicitors can be left in no doubt of what is expected of them. Indeed, the fact that the code is online and openly available to the public, will further guarantee its relevance and importance. The code is a practical guide for solicitors and outlines how best to approach this area of law. It also provides solicitors with a helpful framework from which we can best explain to our clients the type of approach we will take with their cases. It emphasises how important it is for solicitors to encourage clients to resolve their problems in a non-confrontational way. In particular, it stresses that we should pay attention to the type of language used in correspondence, and be careful not to inflame already delicate situations. Indeed, the code of practice reminds us that clients

often see ‘assertive letters between solicitors as aggressive declarations of war’. This is an important point. As solicitors we are trained to think of one side versus the other, often referring to the other party in letters as ‘the other side’ – obviously, this is never appropriate in a family breakdown situation. This new edition of the code of practice extends this warning about inflammatory language to drafting court pleadings. For example, it urges legal professionals to take care not to include controversial facts which may cause long-term damage to the family as a whole. ‘When taking any step in the proceedings, the longterm effect on your client and other family members must be balanced with the likely short-term benefit to the case.’ Overall, the code of practice reminds us that our jobs as solicitors is to assist our clients to find reasonable and fair solutions to their issues and not to up the ante. Certainly, if all family law solicitors followed this code – and it is, of course, the intention of the Law Society that they should – I believe we could cut down on much pointless and often needlessly confrontational correspondence. The code of practice is broken down into various useful headings including guidance on how to deal with the lay litigants, children as clients and court proceedings. The Irish courts have always put children’s welfare first, but with the enactment of the Children and Family Relationships Act 2015, they are now obliged to hear the voice of the child. The code of practice reflects this emphasis on the child and children’s welfare. As family law practitioners, we are asked to encourage clients to focus on their children and in this regard, the code includes suggestions and tips for clients to draw up a survival plan for parents/parenting plan to help reduce conflict; provide structure and security and thereby minimise the trauma and negative effects of the family breakdown situation for their children. There can be no doubt that since the last edition of the booklet was issued in 2008, the family law landscape in Ireland has dramatically changed. With its overall message and emphasis on conciliation, resolution and thinking long-term, I believe this new edition of the code of practice is a welcome and essential tool for family law practitioners, clients and the courts alike. P

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Winter 2017 dsba.ie Kevin O’Higgins is a former President of the Law Society of Ireland and the DSBA. He is a former editor of the Parchment

Interview

A Day in the Life of the AG Kevin O’Higgins meets our relatively new Attorney General, Seamus Woulfe, SC, and ponders the challenges he faces in an unorthodox political set up

S

eamus Woulfe became our 31st Attorney General last June when he succeeded Máire Whelan. It preceded the maelstrom that arose following her appointment to the Court of Appeal in the first few days of the formation of the Varadkar Government. Seamus was not the front runner for the position, in fact decent odds could have been got for his candidature. In truth, the political chattering class may have had other names pencilled in for the position. While Seamus may have been perceived as a dark horse to some, to those of us aware of his activism and suitability for the position, his appointment did not surprise. With the Dáil approving Varadkar’s appointment as Taoiseach the position of AG was still occupied by Máire Whelan, although Enda Kenny’s outgoing

Each great organ of State has it’s own powers. It is a system of checks and balances and inevitably the Courts make decisions on the actions of other branches of Government

Government had earlier approved her appointment to the Court of Appeal. Leo was then left to implement that decision when he assumed office culminating in a Dáil spat and disparaging remarks levelled across the Dáil from the leader of the opposition. Such was the controversy that when it came to Seamus’ calling before the Supreme Court, the then Chief Justice felt it necessary to obliquely chastise the legislative wing of Government by reminding it of the separation of powers. “… which means that each great organ of State has its own powers. It is a system of checks and balances and inevitably the courts make decisions on the actions of other branches of Government. Consequently it is necessary that there be some distance between the branches.” Whatever about the controversy relating to his predecessor’s appointment the Parchment 33

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Photography: Bryan Meade

to the court Seamus’ appointment to the Office of the Attorney General was more straightforward. I caught up with him at the end of a tumultuous week for the Government following the high pressure poker game played out between the Taoiseach and the leader of the opposition with the dire threat of a pre-Christmas general election beckoning . That nuclear outcome was mercifully avoided, but only following the resignation of Minister Frances Fitzgerald. So it had been a tough few days for our AG. His office on Merrion Street is superbly well appointed at the heart and epicentre of Government. When I met him on the Friday following those events he observed that it had been somewhat of an eye opener for him as to how the media size up a situation and then go for the jugular. He regrets the absence of due process and concludes that politics appears to sometimes operate to a different rule book. I have known Seamus for several years as a keen sportsman, (mainly squash at which he excels) but with a keen interest in all sports, especially Dublin GAA and soccer. He encourages his children to get involved and is a mentor to one of the teams in his Clontarf home base. As my editorial requirement for our readers is to illicit from the AG what his typical day looks like, it seems however, that none such exists. “It’s a combination of getting through the paperwork, attending meetings (be they internal, with officials

about advisory or legislative matters) or with Government officials or ministers, or externally with the judiciary or the legal professional bodies.” Such is the ebb and flow of events that each day has its own dynamic. However, the weekly Cabinet meeting is at the apex. This is usually fixed for Tuesday morning at 10am. Typically a Cabinet meeting lasts for three hours and is chaired by the Taoiseach. Mobile phone etiquette requires ministers to deposit their phones outside the Cabinet room. The run into Tuesday, and the day or two after it, are the fulcrum of the week. There may be action matters to be followed through on his side and then he has the normal follow through on the routine day-to --day work of the Office. From the Friday before the meeting, the briefing material appears on his desk. Memoranda from Government departments on agenda items are circulated. Positions on private members’ legislation will be posited. By Friday evening Seamus has already a substantial dossier of weekend material to read. Further material will frequently surface on the Monday as the pace quickens before the cabinet meets the following morning. He likes to get there early. Not that he has far to go as he merely has to cross the ministerial corridor. Getting there by 9.45am means he can catch up with ministers from the Independent Alliance and/or other independent ministers and hear of any concerns they might have. Ministers will always want “a word in his ear”. As one

predecessor of his remarked: “Being AG is akin to being a family solicitor to a family of 15” (now 19). The Fine Gael ministers meet the Taoiseach beforehand and the meeting formally commences at 10am. It runs to a pre-set agenda. The AG has his own particular seat as do the Taoiseach, Tánaiste, Chief Whip and Secretary to the Government. It runs along the lines of a corporate board meeting. Cabinet confidentiality is sacrosanct, yet a certain degree of ministerial briefing is commonplace afterwards. This confidentiality has been affirmed by the Supreme Court in AG V Hamilton whereby, subject to very limited exceptions, (which were set out in a subsequent referendum) the confidentiality of Cabinet discussions was a necessary corollary of the doctrine of Cabinet responsibility of the Government (Article 28.4.2 of the Constitution), and that this rule was absolute. The Constitutional position of the AG is that he is “… the advisor of the Government in matters of law and legal opinion…” (Art 30.1). He is not a member of Government but by convention, attends every Cabinet meeting. Seamus is uncertain (as it hasn’t arisen) as to what happens, if due to sickness or otherwise, the presence of the AG at the meeting is not possible. The convention furthermore is for the AG to speak or intervene at a Cabinet meeting only when asked to do so by the Taoiseach. It is the Taoiseach who leads the discussions. He will

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Winter 2017 dsba.ie

Interview

have a contribution on each and every item on the agenda. If the item is legislative then the minister sponsoring the legislation will be called upon to address the Cabinet. I ask about the process for the appointment of judges. Such appointments will appear on the agenda as an item to be brought to Cabinet by the Minister for Justice for appointment and approval. The name of the person recommended will not appear on the agenda. The Judicial Appointments Advisory Board will have previously provided the minister with its recommendations. Pre-Cabinet discussions will take place between the Taoiseach and Minister for Justice and the AG, and possibly other ministers. Only one name is then submitted to Cabinet without debate. I ask of the pending regime with the new Judicial Appointments Bill back in the Dáil in January and anticipated to be enacted by spring. Whenever it is enacted, the Attorney feels, that there will be a time lag while it beds itself down and puts in place the new structures. “In the meantime however, judges presumably will have to be appointed, where the need arises, as the administration of justice cannot be held up.” The Attorney heads up an organisation which includes the Office of the Chief State Solicitor (presently vacant following Eileen Creedon’s appointment to the High Court). There are about 75 lawyers spread across the two main divisions being parliamentary counsel who are the legislative drafters and advisory counsel whose role is to assist the Attorney in the performance of his functions. These are advisory, giving directions in relation to litigation, or providing legal advice to a Government department. Seamus is full of praise for the quality of work generated from the office and the calibre of people working there. Seamus was educated at Belvedere College before obtaining a primary degree from Trinity in 1984. He then obtained an LLM degree from Dalhousie University in Nova Scotia in 1986 before qualifying as a barrister in 1987, becoming a senior counsel in 2005. He has acted as legal assessor to the Fitness to Practice Committees of the Irish Medical Council and the Nursing and Midwifery Board of Ireland. As a junior counsel Woulfe acted in the Beef Tribunal. Seamus and the now High Court judge, Michael White who instructed him at the tribunal (along with Adrian Hardiman, SC) took the Government of Ireland to the European Court of Human Rights due to a very long delay in their professional fees being discharged. The

State was liable to pay the fees but appealed a 1996 decision of the Taxing Master as to the level of the fees. The appeal took many further years to be determined. He also appeared in the notable case of Attorney General v. X. There is an irony in this as he will now be at the heart of the legal advice to the Government on the wording of the forthcoming referendum and any legislation likely to underpin same. For a number of years, before he took silk, he was a part-time lecturer at Trinity College. Immediately before being appointed Attorney General he was vicechairman of the Bar of Ireland.

It was typical of Seamus, too that on the day that I met him, he was due to meet some of his closest college friends that evening as they do every year, including solicitors Chris Callan, Conor McDonnell and Michael O’Hara, together with Conor Devally, SC, and accountant Joe Lavelle – where they will reminisce on their student days but also remember one of their friends, Martin Kitterick who has since passed away. We are fortunate to have in this Attorney General, someone full of common decency, sound judgment, with a fascination for the new world he finds himself in, yet, fully grounded. P the Parchment 35

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Contractual Interpretation Mark Heslin assesses the ongoing challenge for solicitors with contractual interpretation and says that the Supreme Court in the recent case of Law Society of Ireland v Motor Insurers’ Bureau of Ireland has provided some useful guidance

W

hether concerning the sale of land, the terms of an employment relationship or a commercial transaction, solicitors deal with a wide variety of contracts on a daily basis. A perennial problem for the common law, and a significant issue for practitioners who are asked to interpret and advise on a contract, is the tension between the subjective intention of parties to it and the objective meaning of the contract which was entered. Another challenge is to reconcile the proposition that it is not for a court to make agreements for parties who have failed to do so for themselves with the idea that a court may insert a term into the contract to make it workable, in certain circumstances.

[1889] 14 PD 64, where Lord Justice Bowen, stated, at page 68:

Disastrous Contracts

In Trollope and Colls Ltd v Northwest Metropolitan Regional Hospital Board [1973] 1 W.L.R. 601, at 609, the court made it clear that any term to be implied into a contract must be both so obvious as to have tacitly formed part of the contract, as well as being necessary to give the agreement business efficacy. The statement, later approved in Ireland by the Supreme Court in Carna Foods Ltd & Anor v Eagle Star Insurance Company (Ireland) [1997] 2 IR 193 was in the following terms:

As Mr Justice McCarthy put it in the Supreme Court decision in Tradax (Ireland) v Irish Grain Board Ltd [1984] I.L.R.M. 471: “It is not the function of the court to write a contract for parties met upon commercially equal terms; if such parties want to enter into unreasonable, unfair or even disastrous contracts, that is their business, not the business of the courts.”

Implied Terms Much earlier authority makes it clear however, that the court can and will imply a term into a contract if such a term is an obviously reasonable one and is also necessary to give business efficacy to the contract. The classic statement of the principle can be found in the Moorcock

“…the law is raising an implication from the presumed intention of the parties with the object of giving to the transaction such efficacy as both parties must have intended that at all events it should have.” Thus, even where a contract is apparently complete, the court will add a term if that term is reasonable and without it, the contract will not work. What then of the proposition that it is not the court’s function to write contracts?

Business Efficacy

“An unexpressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract: it is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had been suggested to them: it must have been a term that went without saying, a term necessary to give business

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Winter 2017 dsba.ie Mark Heslin is partner at Beauchamps Solicitors. He is head of their Litigation and Dispute Resolution team

efficacy to the contract, a term which, though tacit, formed part of the contract which the parties made for themselves.”

Necessity As the House of Lords emphasised in Liverpool City Council v Irwin & Anor [1977] A.C. 239 insofar as the question of implying a term into a contract is concerned “the touchstone is always necessity and not merely reasonableness”. That case concerned a contract under which dwelling units in a council block had been let to tenants under conditions which imposed obligations on the tenants but were silent regarding the contractual obligations of the landlord. The House of Lords implied an obligation on the part of the landlord to take reasonable care to keep the essential means of access and other communal facilities in reasonable repair.

Contract Law

readily understood. If it were otherwise, radically different interpretations could be given to two similar contracts, where the parties to each contract had different subjective intentions. In explaining the objective approach which courts must take to contractual interpretation, Laffoy J put it succinctly in UPM v BWG, [High Court, Unreported, 11 June 1999 at p 24] as follows: “The court’s task is to ascertain the intention of the parties and the intention must be ascertained from the language they have used, considered in light of the surrounding circumstances and the object of the contract… in attempting to ascertain the presumed intention of the parties the court should adopt an objective, rather than a subjective approach, and should consider what would have been the intention of reasonable persons in the position of the parties.”

Objective v Subjective

Parol Evidence

When interpreting the terms of an agreement, Irish courts have an obligation to interpret the contract objectively, regardless of the subjective intention of the parties. The public policy behind this approach is

The parol evidence rule prevents extrinsic evidence from being admissible for the purposes of varying, contradicting or subtracting from the written terms of an agreement. However, parol evidence may still have a role to play in

It is not for a court to make agreements for parties who have failed to do so for themselves with the idea that a court may insert a term into the contract the Parchment 37

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terms of contractual interpretation, given, for example, the following comments by Geoghegan J in Dillon –VMcGovern [16th March 1993, unreported, High Court]: “… I decided that parol evidence could be admitted to assist me in determining the true intention of the parties as well as for the purpose of placing the contract in context. I am satisfied however, that as a matter of law, I am entitled to have regard to the parol evidence only for the purpose of helping me to construe the written words in light of the intention of the parties and the general context, and not for the purpose of varying the written agreement.” What Geoghegan J refers to as the “general context” would seem to be equivalent to the “matrix of fact” referred to by Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381 at 1386. The phrase is also similar to the words “background knowledge”, as employed by Lord Hoffman when setting out five basic rules of contractual construction in the seminal case of Investors’ Compensation Scheme –v- West Bromwich Building Society [1998] 1 ALL ER 98 at 114.

Five Rules of Contractual Construction In Investors’ Compensation Scheme, Lord Hoffman provided clear guidance which, almost three decades later, continues to be the touchstone for any solicitor asked to advise a client in respect of the proper interpretation of a contract: “(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract; (2) The background was famously referred to by Lord Wilberforce as the “matrix of fact” but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man. (3) The law excludes from the admissible background the previous negotiations of the parties and their

As solicitors will recognise, interpreting the meaning of a contract is more than a slavish analysis of either or both elements and the context in which a contract came into being plays a crucial part, albeit within defined boundaries

declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them. (4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax… (5) The ‘rule’ that words should be given their ‘natural and ordinary meaning’ reflects the commonsense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said… ‘…if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense’.” As can be seen from the foregoing, “rule” (3) excludes from the admissible background, the previous negotiations and declarations of subjective intent. In light of the comments by Laffoy J in UPM and by Geogeghan J in Dillon, it’s settled law that the subjective intent of the parties and what they said in their negotiations, prior to the contract coming into being will not “trump” or unseat the plain meaning of the words used in their contract. However, the intent of the parties is not irrelevant, insofar as it will show the background or general context in which the parties agreed a form of wording and it is against that background and in that context, the court must establish the objective meaning of the contract in question.

2017 Guidance In the recent Supreme Court decision in Law Society of Ireland v Motor Insurers’ Bureau of Ireland [2017] IESC 31, the five rules of contractual construction set out by Lord Hoffman in Investors’ Compensation Scheme Limited were cited with approval. Commenting on them, O’Donnell J gave the following analysis of the modern approach to contractual interpretation:

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Contract Law

“These principles represent a significant staging point in the development of what might be described as a modern approach to the interpretation of contracts, a development which, as the principles recognise, has not necessarily reached its terminus… the modern approach to the interpretation of contracts is one which would probably be unrecognisable to, and might be regarded as heresy, by the Victorian judges who expounded so confidently on commercial matters.”

Words v Meaning O’Donnell J went on to emphasise that the meaning of a contract is far more than merely the meaning of the words in it. Having emphasised the importance of approaching an agreement “…in a holistic way rather than having immediate resort to case law…” O’Donnell J gave the following useful guidance at paragraph 9 of his judgment: “A contract is a form of communication intended to convey the meaning agreed upon by the parties. Words are the vehicle through which that meaning is conveyed but the meaning of a document is much more than the meaning of the words. It is what the parties would reasonably have been understood

to mean from a consideration of all the available guides to the meaning of the agreement. Words are an important and very often the only necessary guide to discerning the meaning, but they are only a guide, and as recognised by Lord Hoffman, they can be ambiguous, and sometimes even, as happens in real life, it may be apparent the parties have for whatever reason used the wrong words or syntax. In those circumstances, the words must give way.”

Holistic Approach Language is a code with two elements: semantics being the meaning of words and syntax being the order in which words are arranged. As solicitors will recognise, interpreting the meaning of a contract is more than a slavish analysis of either or both elements and the context in which a contract came into being plays a crucial part, albeit within defined boundaries. As recognised by Lord Hoffman and O’Donnell J, meaning can be conveyed unambiguously even where the wrong words are used. The challenge for the solicitor is to approach contractual interpretation in a modern context in what O’Donnell J described as “a holistic way”, to continue to best serve our clients and, ultimately, the administration of justice. P the Parchment 39

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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

Job Hunting Flor McCarthy takes an alternative look at how we as solicitors can innovate and improve how we serve our clients

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layton Christensen is the world’s foremost authority on innovation. The Harvard Business School professor and author of The Innovator’s Dilemma, created the theory of disruptive innovation. And now it seems everybody talks about disrupting this, that, or the other, without any real understanding of what the theory tells us. One of things that it does tell us is that, traditionally, innovation has been very unpredictable. The whole venture capital industry is based on the premise of backing multiple horses in the knowledge that the majority of innovative ventures will fail, but that the minority that succeed will more than make up for the others. But what if we could predict successful innovations in advance? Why does this feature of business have to be so haphazard when we have become so good at planning and managing so many other aspects of commercial endeavour? Well, funnily enough, Christensen has come up with a theory that can help with this too. And it’s something that the legal profession should look at very closely. You see, while his original theory of disruptive innovation was not designed to predict which innovations are more likely to succeed, it is very good at telling us the conditions in which disruption happens. Markets in which the products or services provided by the incumbents are very expensive, sophisticated and therefore inaccessible to all but an elite minority who can afford them. Sound familiar? The legal sector is just waiting to be disrupted. All that it has been missing up to now is a technological model that could facilitate it; and that’s coming. But, as incumbents, if we accept our fate, and assume that what has happened in other similar markets will

eventually happen in ours, how might we take action now? To do it to before it is done to us in other words. Well, another of Christiansen’s theories might be very useful to us in doing so. The Jobs To Be Done Theory provides us with a way in which to develop innovations that we can predict with confidence, will be successful. Jobs To Be Done involves a whole new way of looking at what our products or services do in the lives of customers who hire those products or services for jobs that they need to have done. One of the best illustrations of how the theory operates in practice is Christiansen’s talk about the job of a milkshake. (Google it, believe me, the video is worth the five minutes or so of your life it will take to watch it.) The story of the job of a milkshake involves a fast food chain that wanted to improve its milkshake sales. They had highly developed demographic models for their customers who consumed milkshakes and they asked them what they could do to make the milkshakes better. And they got valuable feedback which they acted upon and made genuine qualitative improvements to the product. But there was no improvement in sales. They were stumped. So they went to Christiansen and he studied the problem. They went into the restaurants and watched the consumers who purchased the milkshakes for a long time. They noticed one particular segment who bought a lot of milkshakes. They came in alone, early in the morning. They bought a milkshake and nothing else. And they always had it to go. Intrigued, they approached some of these people and asked them what job they needed done in their lives that caused them to hire the milkshake. And it turned out they all had a long, boring, earlymorning commute to work. They needed something that was convenient to consume on the way, occupied them for a sufficiently long period of time while driving and

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Winter 2017 dsba.ie

Practice Management

kept their hunger at bay throughout the morning. It turned out that, when they looked at this problem in this way, the competitors for the fast food restaurant’s milkshakes were not other restaurants’ milkshakes, but rather other products that could do the job as well. Milkshakes were competing with things like bananas, coffee, snack bars, doughnuts and bagels. Milkshakes just happened to do that particular job better than all of the alternatives in the lives of the customers who hired them. And viewed through this lens, the improvements that you would need to make would be quite different from what you might otherwise think. You might put the milkshake machine out in front of the counter so that regular customers with a loyalty card could fill their own, you might add viscosity and texture to make them take longer to consume and be more filling. Successful innovations would be completely aligned with the very specific job that the product was hired to do in the life of the customer. Jobs To Be Done Theory requires us to move at least one level of abstraction up from what those of us in an industry think of as our product or service category. You’re not competing with other milkshake vendors, you’re competing with the real alternatives in your

customers’ lives for the jobs that they need to have done. So, what does this mean for us in law? Well, much of what we do can be analysed by jobs theory too. Take, for example, a simple will. As lawyers we think of a will as something that has a very particular job to do. A will is a perambulatory instrument that only speaks from death. And, as lawyers, this is the job that we think of wills as performing. But, during the life of the testator, the will performs a very different job indeed. When she first buys a home and starts a young family, making a will helps her feel like a good and responsible parent. Seen in this way, the will competes with other things that might help her feel good about herself in this respect. It might compete with life insurance; with changing the car to a safer people carrier. The job the will does in the client’s life and the alternatives that it competes with for that job give us valuable insights into how we might innovate to make it much more likely to be hired. This is just one very simple example. But jobs abound everywhere, in all of our clients’ lives. And we can use this way of looking at our clients’ worlds to innovate and improve how we serve them. For their benefit, and for ours. P

The legal sector is just waiting to be disrupted. All that it has been missing up to now is a technological model that could facilitate it; and that’s coming the Parchment 41

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Diego Gallagher is a partner at Byrne Wallace and he is a council member of the DSBA

News

Update on new Family Law Courts at Hammond Lane Diego Gallagher reports on developments that will hopefully see a new courts complex open in 2021

In terms of delivery of the project, it is envisaged that Hammond Lane will not be operational until 2021 at the earliest

H

ammond Lane is the site for the proposed new Family Law and Supreme Court complex. In his statement for the new legal year 2017, the Chief Justice, Mr Justice Frank Clarke said: “We have, just across Church Street an invaluable, publicly owned site at the heart of the legal quarter. It needs to be exploited to the maximum advantage consistent with proper planning. Anything less would, in my view, be a waste of a valuable public resource.” The DSBA has been at the forefront of consultation with the Courts Service in respect of this once in a lifetime opportunity for the delivery of a fit for purpose family law complex. The DSBA has had a number of meetings with the Courts Service to consult and appraise the Courts Service of the needs of solicitors and court users. Most recently, on 2nd November 2017 I met with the Courts Service Estates Management Unit in the company of representatives of the Family Lawyers’ Association, Law Society Family Law Committee and the Bar Council. Draft plans were shown of the proposed building which will house the Family Law Courts (District, Circuit and High), Children’s Civil and Criminal Courts and the Supreme Court. We had previously been shown draft plans at an earlier meeting in the spring and it was clear that some suggestions made at

that meeting had been taken on board in the new draft plans. Further suggestions were made, such as requesting that there be more closed consultation rooms and that there be a legal practitioner room on each floor, to name but a few. In addition, suggestions were made regarding the current temporary Child Care Courts in Chancery Court (formerly the Bridewell Court). Issues such as the poor acoustics in court and security in the court were raised. In terms of delivery of the project, it is envisaged that Hammond Lane will not be operational until 2021 at the earliest. The key issue at this point is for funding to be provided by the Department of Justice and Equality. The Courts Service has provided a very detailed business case and is awaiting confirmation from the Department in respect of funding. Once finding is in place an application under Part 9 of the Planning and Development Regulations 2001 will need to be made. This may take up to 12 weeks. Once approved, a procurement process will be undertaken (one year approximately) and then construction, which will take approximately two years. Overall, the meeting was very productive and credit is due to the Courts Service for its consultation with the relevant parties. Further contact and meetings with the Courts Service is envisaged and Parchment readers will be kept appraised of developments. P

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The Secret life of John John Neville is a solicitor with his own successful practice in Dun Laoghaire. By day John practises in the areas of mental health law, litigation and general practice. However, in his spare time John managed to become the first Irish person to solo climb Mount McKinley, the highest mountain in the US. Julie Doyle speaks to John about his thrilling adventures from Everest to Dun Laoghaire

Can you tell us a little about your background, where you grew up and what drove you to choose a career in law? I was born and reared on a farm/racing stables in north Cork near the village of Doneraile. My dad was a farmer and also a race horse trainer and my mum was a solicitor. During my early years before we were barely walking I have many great memories riding out the race horses. It was a great time. I recall one morning riding out a horse call Hamers Flame. She won the Galway Plate that afternoon in Galway. My mother Mary Harvey was a solicitor as was her dad, who was the State Solicitor in Cork and that practice remains in place being run by his son, Martin A Harvey. There were seven of us in the family, five boys and two girls. It was clear from an early age that I was going to have to find an alternative career being the third boy. When did you qualify and where did you commence your career? I was extremely lucky to have had the option to do my apprenticeship in Martin A Harvey and Company in Cork city. After qualifying in 2002, I decided to move to Dublin to gain some experience outside of the capital! I worked initially with W Terence Liston and Company for a year in Donnybrook where I was involved in litigation and conveyancing. I then moved to Dermot H Morris and Company which was a specialist criminal law practice. In 2004 I set up myself in Stillorgan and subsequently moved to Dun Laoghaire. Michelle Golden, my wonderful wife and I, operate our practice from here. We deal mainly in the areas of mental health law, litigation, probate and general practice. What is your most memorable moment in practice? The most memorable moment was when I was told as a result of a case I was involved in, that the Government had to bring in emergency legislation that day. That was the case of SM –v- St Patrick’s

Hospital and the legislation was the Mental Health Act, 2008. The case was commenced to try and access community treatment for a client detained under the Mental Health Act, 2001. The result was ultimately a positive one for my client. Who had had the most influence on your career to date and why? I would have to say that Martin Harvey solicitor who was my master whilst completing my apprenticeship, had the most influence on my career. He thought me the importance of precision and the necessity of attention to detail. He also did a lot of pro bono work and gave up much of his time with various charities. He also showed me the importance of ensuring each individual client you represented knew that you were treating their case as a priority. Can you tell us a little about the High Court case in 2010 you were involved with regarding the right of audience of barristers? This was an interesting case. Two clients of mine were in custody and were being brought to Bray District Court. I couldn’t attend myself, so I instructed counsel to attend on my behalf. I was informed by counsel I had instructed that there may be an issue where he believed he may not be granted an audience before the then presiding District Court judge. My clients were remanded into custody where the court refused to give counsel a right of audience without having the instructing solicitor present. Ultimately both clients were released the following day before the High Court. Mr Justice Hedigan kindly delivered a very helpful judgment on 20th May 2010 which clarified Order 6 Rule 1 of the District Court rules. It was a case of Heinullian and the Governor of Cloverhill Prison. It clarified that counsel can appear before the District Court and have a right of audience in the District Court by virtue of their call to the bar by the Chief Justice of Ireland. It was a very important decision for both members of the solicitors’ profession and the more junior members of the Bar.

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Winter 2017 dsba.ie Julie Doyle is Head of Legal Services at Clúid Housing. She is a member of the DSBA’s Parchment Committee

Being a solicitor is your day job, is it fair to say you are a bit of a thrill seeker? You are a very successful mountain climber? Once a boy scout, always a boy scout. I am now a beaver scout leader for my children’s group so I’m delighted to be able to use some of my climbing skills for something other than trying to not fall off some big hill. After finishing up with the scouts when I was younger, I was lucky enough to get the chance to take on some high altitude climbing. I spent the best part of a gap year climbing many of the mountains in the Andes. It is one of the cheaper places to climb around the world. I spent several years thereafter trying to complete the seven peaks on the seven continents challenge. Unfortunately I came unstuck on the North East Ridge Route up Everest. I managed to climb several challenging peaks over the years, but my experience in Tibet was a significant challenge both physically and mentally. The expedition I was on was self led. I’m not sure if it’s a job half done, but I was just delighted to get off that mountain with ten fingers and toes. Not an experience for the faint hearted. What was your most challenging climb? For the sheer mentally exhausting element to it, Everest was the most difficult. To attempt it you have to spend almost two months at high altitude. The further on it goes the more draining the physical exertion on your body due to the higher altitude. Would I recommend it to anyone else, absolutely, as

Interview

long as you are not one of my children reading this, then no way! Congratulations on becoming the first Irish person to solo climb Mount McKinley! Can you tell us a bit about the climb and what led you to decide to go solo? What difficulties did you encounter along the way? After my time in the Andes where I completed several group climbs, I found it incredibly slow to progress up the hills in groups. I managed to get up Aconcagua solo. This is the highest peak in South America. I then decided to try and solo climb the highest peak in North America, Mount McKinley. Pat Falvey gave me a lot of advice on this Alaskan climb which proved invaluable. It’s daylight 24/7 and you land on a glacier in a little plane on skis. You trek up a glacier for two days to get to the start of the more technical climbing part. With any glacier there are crevasses and snow bridges over them. So all the climbing started at the coldest point of the day at around 2am where there was the least chance of the snow bridges collapsing. The crevasses can be over 1km deep. When you are going up along the glacier there are a lot of creaking and cracking sounds underneath you, you certainly don’t stop to see what it is making the noise. Can you describe what it felt like when you finally reached the summit? I got stuck at the high camp for two days in a snow storm on Mount McKinley. When going for the

When you are going up along the glacier there are a lot of creaking and cracking sounds underneath you, you certainly don’t stop to see what it is making the noise

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Photography: Bryan Meade

I am involved in coaching my children in football and hurling with Kilmacud Crokes so I try to limit the interference with family life. When they get older I plan to get faster!

summit there was just me and an American climber going for the summit that morning as all the other climbers had retreated down to base camp. It was hard going as the snow was powder and deep. We took turns and eventually got to the summit ridge after approximately eight hours. Coming back down the glacier was trickier as it was getting warmer and there was a lot more movement. I was trying to make the last flight out that particular day. When I was about 50 meters from the start of the landing runway there was a new sky blue water pool in front of me. Unfortunately I then started sinking through the snow and ice as I was too close to the icy pool. I feared that the whole section around me could break off into the pool. I was tied to my sled with all my gear pushing me forward. It was one of those moments when time stopped. Eventually I managed to back up and got to more solid ground. I made that last flight, but that certainly was one of the most terrifying moments of that climb. Of course, mountain climbing is not your only achievement. Is it true you learned to swim only months before taking part in your first triathalon? In December 2012 a friend and colleague, John Connellan, told me he had signed up to do the Ironman in Wales. Great idea I thought to myself. I could run and what’s there to cycling? So I booked a place also. I couldn’t swim at that time. I bought a DVD called “Swim smooth learn to swim freestyle”. It’s a great programme for anyone who wants to learn how to swim without all the lessons, etc. I also found out during the year that cycling 180km is actually difficult enough too! So you are now competing in distance races in your spare time with Belpark Triathalon Club! How many Ironman competitions have you competed in? And for the benefit of your readers can you describe the distances required for an Ironman? Belpark is a great club as are the many other such clubs all around the country. I have completed five of these long distance races. They involve a 3.8km swim, 180km on the bike and a marathon to finish off the event.

Each course is so different, but the aim is to complete it as quickly as you can. What training do you need to undertake to compete at that level? The hours per week really depends on the time before the race and depends on your training programme. For me it goes from eight hours to a max of 15 hours a week. If you throw in a long cycle of six hours it’s not that bad. The high achievers do up to 30 hours a week. John, how do you manage to balance it all? Long distance training involves a huge time commitment and a very understanding family! When training, I normally start at 5am and finish at 7am. If I wanted to become faster, I would need to increase the training times. In the evenings, I am involved in coaching my children in football and hurling with Kilmacud Crokes so I try to limit the interference with family life. When they get older I plan to get faster! What would you say to anyone thinking about competing at this level? If you can run 5km you can do anything. Injury prevention is really important. I would strongly recommend anyone undertaking any long distance endurance events to use the Phil Maffetone low heart rate training principle. It’s so simple and really effective long term. For any distance running I would recommend doing Catherina McKiernan’s course on chi running. Above all I’d say that you should try and set a goal and create a realistic personal plan on how to execute it. It’s often said that Ironman participants are keen to seek a new challenge once that competition is mastered. So what is the next challenge for you John? The next challenge is Ironman in Lanzarote next May. Ultimately the aim is to qualify for the World Championships. This year Michael Carroll, an Irish athlete qualified for the Ironman World Championship in Kona in the 65 – 69 age group category so there’s always hope. Life is not a test run! P

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The Mediation Act 2017 - What Solicitors Need to Know

Valerie Shaw reports on the long-awaited Mediation Act which was signed into law by the President on 2nd October 2017

T

his is an important piece of legislation for all solicitors, but particularly for those who practise in the area of litigation. The Act imposes new statutory obligations on solicitors to ensure that mediation is considered and discussed with clients before proceedings are issued. Its objective is: “to promote mediation as a viable, effective and efficient alternative to court proceedings, thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress involved in court proceedings”.

What are the New Obligations on Solicitors? Under section 14 of the Act, all practising solicitors are now obliged to advise their clients to consider mediation as a means of attempting to resolve disputes and to provide information in relation to mediation services (including names and addresses of persons providing such services), prior to issuing proceedings. Clients must also be provided with information about the benefits of mediation and the advantages of resolving their disputes other than by way of legal proceedings. The essential characteristics of the mediation process (detailed further below) must be explained to clients. If relevant, clients should be advised that mediation may not be an appropriate means of resolving their disputes where the safety of the client and/or their children are at risk.

How will the New Obligations be Enforced? Solicitors must now swear a statutory declaration confirming that their section 14 obligations have been properly met and that declaration must be filed in

the relevant court office with the originating document by which the proceedings are instituted (e.g. civil bill, summons, originating notice of motion etc). Where such a declaration is not filed, courts will adjourn any proceedings issued until such time as it is provided.

Are In-House Counsel Covered? The definition of “practising solicitor” in the Act is broad and obligations under section 14 will apply equally to in-house solicitors where they are a practising solicitor on the roll of solicitors and are required to issue proceedings on behalf of their organisation without the involvement of an external solicitor. Where an in-house solicitor instructs an external solicitor to issue proceedings, the section 14 obligations will fall to the external solicitor.

What are the Essential Characteristics of the Mediation Process? Mediation is defined in the Act as “a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute”. The Act confirms the key characteristics of the mediation process: • It is a voluntary process. There is no obligation on any party to engage in mediation unless they want to and they can withdraw from the process at any point; • Mediation is conducted in private, and communications relating to the mediation are confidential and cannot be disclosed in legal proceedings; • Parties can engage in mediation at any time prior to the resolution of the dispute. The fact that proceedings have

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Winter 2017 dsba.ie Valerie Shaw is a senior solicitor with the National Asset Management Agency. She specialises in litigation, investigations and freedom of information.

Litigation

issued or at an advanced stage does not prevent this; • Parties can bring legal or other third parties to assist them at a mediation and they are entitled to obtain independent legal advice at any time during the mediation; • Although assisted by the mediator, it is the parties themselves that agree the terms on which the dispute is to be settled.

What Benefits can Mediation Offer? As solicitors are now obliged to discuss the benefits of mediation with clients prior to issuing proceedings, it is important to understand what those benefits are. They can include: • Time saving – mediations can be organised and completed within a matter of weeks where the parties are committed; • Cost saving – mediations often avoid the need to brief barristers and they take place over a shorter period of time; • Non-adversarial process - but it still allows the parties to air their grievances before an independent third party; • Preserves business relationships and reputations which can be important where parties to a dispute want to continue to do business together; • Flexibility of resolution – during a mediation the parties can choose how best to resolve the dispute. They are not tied to traditional court reliefs (e.g. damages/injunction etc.) so they are free to consider all proposals such as re-financing or future business deals as potential settlement tools.

Does the Act Apply to all Legal Proceedings? The Act applies generally to civil proceedings, however there are some exceptions specified. It will not apply to the following: • Arbitrations • Employment disputes under the functions of the Workplace Relations Commission • Taxation or Revenue matters • Judicial Review proceedings • Proceedings against the State in respect of alleged infringements of fundamental rights and freedoms • Proceedings under the Domestic Violence Acts/ Child Care Acts. Certain family law-related proceedings are also specifically excluded from the obligations on solicitors under section 14.

Are There Particular Disputes which Would not be Suited to Mediation? In addition to the specific proceedings excluded under the Act itself, there may be particular disputes where the needs of clients might be better met through litigation in the courts. Examples of this could include: • Where a legal precedent is important – e.g. where there are a series of similar claims; • Where a claim involves the vindication of constitutional rights;

• Where there are particular reasons why resolution in a public forum would be preferable.

What is the Role of the Courts? The Act includes statutory provisions allowing a court on the application of a party or on its own initiative to invite parties to consider mediation. Where parties decide to engage in mediation, courts can adjourn proceedings and extend timelines for compliance with rules or orders to facilitate mediation.

Are There any Implications for Legal Costs? Yes. Where a court invites parties to consider mediation, if a party unreasonably refuses to do so, a court can take this into account when awarding the costs of legal proceedings.

What about the Statute of Limitations? The Act specifies that the clock can be paused on any limitation period when parties enter mediation. To engage this provision, parties must sign an agreement to mediate and the clock is paused from the date of signing of that agreement until 30 days after either a mediation settlement is signed or the mediation is terminated, whichever occurs first.

Conclusions The objectives of the Act are admirable, and there is no doubt that mediation can often offer a more costeffective, speedy and business-friendly dispute resolution solution. There is a danger of course, that for some litigation solicitors, the new statutory obligations will be treated as a box-ticking exercise and the benefits of mediation may not be explored with clients in any meaningful way. Continuous professional development on the benefits mediation offers as well as raising public awareness around mediation generally should assist in countering this risk. The Act should also go some way to assuaging solicitors’ concerns that to suggest mediation before proceedings are issued or at an early stage in proceedings could be seen as a sign of weakness. P

Under section 14 of the Act, all practising solicitors are now obliged to advise their clients to consider mediation as a means of attempting to resolve a dispute and to provide information in relation to mediation services prior to issuing proceedings

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Bunreacht na hÉireann at 80 By Gerard O’Connell As the Christmas season fast approaches, a major milestone in Irish legal history is about to be reached. December 29th 2017 will see the 80th anniversary of the coming into force of Bunreacht na hÉireann – the Constitution of Ireland. The text of the Constitution was approved by a vote of Dáil Éireann on 14th June 1937 and was enacted by a vote of the people in a referendum held on 1st July 1937 (which coincided with polling day for the general election of that year). Bunreacht na hÉireann replaced the Constitution of the Irish Free State of 1922 which was itself a product of the AngloIrish Treaty of 1921 negotiated between the team of Dáil plenipotentiaries led by Michael Collins and Arthur Griffith and representatives of the British Government led by then Prime Minister, David Lloyd George. Writing in 1980, Mr Justice Brian Walsh remarked that one of the major differences between Bunreacht na hÉireann and its

1922 predecessor was the inclusion in Bunreacht na hÉireann of “moral beliefs and philosophical concepts which are embodied in the 1937 Constitution as fundamental concepts of law”. One shouldn’t make light of the fact that 1937 saw the continent of Europe slide inexorably along the road towards fascism and totalitarianism. The former Chief Justice, Susan Denham in this context has commented “that instead of dictatorship, the Irish people had the opportunity to cast their ballots for their representatives of choice, and could give their verdict on a draft Constitution.” That opportunity is something that we as succeeding generations of Irish citizens, now take for granted. The Parchment is delighted to be able to publish here extracts from the original bound printed 1937 edition of Bunreacht na hÉireann. This was a limited first edition which we understand was published exclusively for Eamon De Valera and members of his cabinet. With kind

permission of the DSBA President, Robert Ryan we are able to publish extracts from his grandfather’s copy of the document. PJ Ruttledge was a native of the parish of Ardagh in north Mayo and practised as a solicitor in Ballina, County Mayo and in Dublin. He was auditor of the Solicitors’ Apprentices Debating Society of Ireland (SADSI) in 1916-17, a veteran of the War of Independence and Civil War, elected to Dáil Éireann for the north Mayo constituency from 1921 to 1951, and served at Cabinet in three portfolios: Minister for Lands and Fisheries; Minister for Justice and Minister for Local Government and Public Health. For further reading on this topic may I recommend Mr Justice Gerard Hogan’s definitive publication, The Origins of the Irish Constitution, 1928-1941, published by the Royal Irish Academy. Gerry O’Connell is chairman of the DSBA Parchment Committee and is an associate with Doherty Ryan & Associates.

Names in order as they appear in the photo above: Eamon De Valera (Taoiseach and Minister for External Affairs), Sean T O’Kelly (Tánaiste and Minister for Local Government), P.J. Ruttledge (Minister for Justice), Dr. James Ryan (Minister for Agriculture), Sean Lemass (Minister for Industry and Commerce) Frank Aiken (Minister for Defence), Sean MacEntee (Minister for Finance), Tom Derrig (Minister for Education), Oscar Traynor (Minister for Posts and Telegraphs), Patrick Lynch S.C. (Attorney General), Gerry Boland (Minister for Lands), P.J. Little (Government Chief Whip), Maurice Moynihan (Secretary to the Government 50 the Parchment

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Winter 2017 dsba.ie

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Back row LR: Ronan McLoughlin; Aine Hynes; Ardmhéara Bhaile Átha Cliath, Mícheál MacDonncha; Robert Ryan, President, DSBA; Susan Martin; Greg Ryan; Killian O’Reilly. Front row LR: Paul Ryan; Tony O’Sullivan; Diego Gallagher; Matthew Kenny. Pic: Michael Finn

DSBA Present Dublin Lord Mayor with Fuel Fund Cheque The December 2017 DSBA council meeting was held at the Mansion House. The meeting was addressed by Ardmhéara Bhaile Átha Cliath, Mícheál MacDonncha; following which the DSBA President Robert Ryan presented him with a cheque for the Mansion House Fuel Fund.

EU GENERAL DATA PROTECTION REGULATION

In Practice

The General Data Protection Regulation (“GDPR”) will be in force from 25th May 2018, and many solicitors and their clients are already preparing for its introduction. In order to assist you and your clients with preparing for compliance, we refer you to the following helpful websites: • www.gdprandyou.ie • www.dataprotection.ie The following is a link to the text of the GDPR: • http://eur-lex.europa.eu/legal-content/EN/ TXT/PDF/?uri=CELEX:32016R0679&fro m=EN While the text is cumbersome, the Article 29 Working Party has issued practical and helpful guidance on the following areas of the GDPR (available on www.gdprandyou.ie/ resources and http://ec.europa.eu/newsroom/ just/item-detail.cfm?item_id=50083), with further guidance due before May 2018:

1. Right to data portability 2. Data protection officers 3. The lead supervisory authority 4. Data Protection Impact Assessment (DPIA) 5. Application and setting of administrative fines 6. Personal data breach notification

7. Automated individual decision making and profiling. The DSBA IP and Technology Committee will be hosting seminars in 2018 to help our members with this ever changing and critical area of law. Susan Martin, DSBA IP and Technology Committee the Parchment 51

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In Practice

COSTS PRACTICE DIRECTION UPDATE Practitioners will be aware of Practice Direction HC71 dated 28th March 2017 relating to payments on account of costs following the successful conclusion of litigation. In essence, the Practice Direction provides that where there is no dispute on liability for payment of costs and in any other case which a Judge thinks appropriate, an Order may be made directing payment of the reasonable sum on account of costs within such period as may be specified by the Judge, pending the taxation of costs. Such Orders are made on an undertaking given by the solicitor for the successful litigant

that, in the event of taxation realising a smaller sum than that directed to be paid on account, any overpayment will be repaid. This Practice Direction came into effect on 24th April 2017 and has been successfully used by practitioners in a number of cases since then. The following decisions may prove useful in guiding practitioners on the application of the Practice Direction:• Heeny v Depuy International v [2017] IEHC 355, • Da Silva –v- Rosas Construtores SA (unreported) Keane J. 1st June 2017; • Anteki v MIBI (unreported) Barr J 28th July 2017; and

• CED Construction Limited –v- First Ireland Risk Management Ltd [2017] IEHC 603. In the Antecki case, Barr J confirmed that there is no requirement on practitioners to demonstrate that there are excessive delays in taxation in order to rely on the Practice Direction. In the CED Construction Limited case, Barrett J has recently confirmed that an Order for payment of costs on account can be sought and obtained at any time after the conclusion of the legal proceedings. Killian O’Reilly, DSBA Litigation Committee

THE EU-US PRIVACY SHIELD – AN UPDATE The European Commission has today presented its annual report on the functioning of the EU-US Privacy Shield as required by the Adequacy Decision. The Commission have found that the Shield continues to provide an adequate level of protection for personal data transferred out of the European Union to Companies in the US. There are a number of recommendations to ensure the continued function of the Shield and in particular the Commission suggests more proactive and regular monitoring of companies’ compliance with their Privacy

Shield obligations by the US Department of Commerce. The Department should conduct regular searches for companies making false claims about their participation in the Shield. They have also suggested more awarenessraising for EU individuals about how to exercise their rights under the Shield and most notably on how to lodge complaints as there seems to be a lack of knowledge in this area. The Commission has also called on closer cooperation between the privacy enforcers, i.e. the Department of Commerce, the Federal Trade Commission and the EU Data

Protection Authorities and in particular to develop guidance for companies and enforcers. Finally, the Privacy Shield Ombudsman has not yet been appointed and this, together with the empty posts on the Privacy & Civil Liberties Oversight Board need to be filled as soon as possible. The Report will now be sent to Parliament, the Council, the Article 29 Working Party and to the US Authorities who will respond in due course. Greg Ryan, Greg Ryan Solicitors

CALL FOR SUBMISSIONS TO IMPROVING OUR CIVIL JUSTICE SYSTEM Practitioners attention is drawn to the request for submissions by a group chaired by the President of the High Court, Mr. Justice Peter Kelly which has been tasked to review the administration of civil justice in the State. The group has requested submissions from interested persons, in relation to the following areas in particular:a. Improving procedures and practices and removal of obsolete, unnecessary or overcomplex rules of procedure; b. Reviewing the law of discovery;

c. Encouraging alternative methods of dispute resolution; d. Reviewing the use of electronic communications including e-litigation and possibilities for making court documents (including submissions and proceedings) available or accessible on the internet; e. Achieving more effective and less costly outcomes for court users, particularly vulnerable court users. Family Law matters are not included in the

remit of the group. Submissions must be no longer than 5,000 words and the deadline is 16th February, 2018. More detailed information on the terms of reference and membership of the group is available at www.civiljusticereview.ie This is a terrific opportunity to give voice to any issues that members consider important. The DSBA will be making a submission so if you have any issue that you wish to have considered by the group, please email Killian O’Reilly at koreilly@mcdowellpurcell.ie.

PRACTICE NOTE RE SI. 475/2017 Practitioners’ attention is drawn to Statutory Instrument 475/2017 which came into force on 27th November 2017. The Statutory Instrument amends the

rules of service to facilitate the service of proceedings by registered post, with certain exceptions, and to enable parties to indicate their willingness to receive documents

proceedings by email. DSBA Litigation Committee

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2018 DSBA Law Book of the Year Awards

Congratulations Minister Madigan The DSBA send their warmest congratulations to Josepha Madigan, TD, on her appointment as Minister for Arts, Culture, Heritage and the Gaeltacht. The Dublin/Rathdown TD was greatly involved with the DSBA through her membership of the Family Law Committee before entering politics a number of years ago. We wish Josepha every success in her new ministerial role.

The DSBA is pleased to announce the upcoming 2018 annual dinner and Law Book of the Year Awards, which will take place in June 2018. 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 2018 line-up will be one of the strongest for many years with a variety of academic and practical volumes. Full details will be published in the spring edition of the Parchment.

Upcoming Events

For details of our upcoming events please join our DSBA Younger Members group on LinkedIn, our Facebook page and our Twitter page. Please also check the DSBA website regularly.

DSBA Younger Members’ Event The Younger Members’ Committee of the DSBA hosted a Development Advice seminar in association with Morgan McKinley on 14th September 2017 at the offices of Morgan McKinley on Burlington Road, Dublin 4.

There was a large turnout for the event which featured talks from Peter O’Neill, director and associate general counsel at Facebook; Aideen Hennessy, partner at Hennessy O’Shea; Lucy O’Connell, BL, and Bernardo Pina, consultant in the legal

team at Morgan McKinley. The seminar was hugely popular as the speakers discussed various reasons for pursing alternative paths within the legal field and how their careers have progressed since taking on these roles.

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Winter 2017 dsba.ie

News

DSBA Mandatory Regulation Seminar The DSBA Practice Management Committee hosted a CPD seminar on 5th December 2017. The seminar addressed the money laundering legislation and obligations for solicitors; revenue inspection and revenue powers of inspection of client affairs; and solicitors accounts regulations and Law Society audits.

Every solicitor who is a sole practitioner or a compliance partner and/or an antimoney laundering compliance partner now has a CPD requirement which includes a minimum of three hours regulatory matters, at least two hours of which shall be accounting and anti-money laundering compliance matters.

The speakers at the DSBA seminar were Colm Dunne (Law Society Investigating Accountant); Fiona Stanley ((Law Society Investigating Accountant) and Grainne Duggan, BL. The seminar was chaired by Niall Cawley, Chair of the DSBA Practice Management Committee.

Michael Quinlan New President of the Law Society The Parchment and all involved in the DSBA send their congratulations to Michael Quinlan on being elected the new Law Society President for the year ahead. Michael spent many committed years being involved with the DSBA culminating in his Presidency of the DSBA in 2007/08. In becoming the new Law Society President, Michael follows in the footsteps of his mother Moya Quinlan, who was the first female President of the Law Society in 1980/81, having been President of the DSBA in 1979/80. We wish Michael every success for the year ahead.

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News

John Geary, Editor of the Parchment; Grace Aungier of the IMAs; Maura Smith, DSBA and Killian Morris (AMOSS Solicitors) at the IMAs

Magazines Ireland Awards The DSBA and the Parchment were celebrating at the recent Magazines Ireland Awards (the IMAs) having been shortlisted for awards in three different categories. The awards ceremony took place on 30th November 2017 at Smock Alley Theatre, Temple Bar. Impressionist Oliver Callan was the host for the evening. The judging panel of Magazines Ireland (the trade association of magazine publishers) shortlisted the Parchment in the Business to Business Magazine of the Year category. There were four 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 six 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 our friends in the Law Society Gazette who scooped two awards at the IMAs. Magazines Ireland represents 38 Irish publishers who together produce over 185 magazines, both consumer and business to business titles.

Julie Doyle and DSBA Vice President Greg Ryan at the IMAs

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DSBA Annual General Meeting

Photography: Michael Finn

The DSBA held its annual general meeting on October 24th 2017 at the Westbury Hotel. A capacity crowd was in attendance. Robert Ryan was elected as DBSA President for 2017/2018.

Left to right: Joe O’Malley; Greg Ryan; Robert Ryan, President DSBA; Aine Hynes; Tony O’Sullivan; Diego Gallagher Left: Tom Menton; Killian O’Reilly Far left: Ursula Ayueyi; Chan Shi

Right: Niall Cawley; Aine Gleeson; Matthew Kenny Far right: Laura Horan; Elaine Given

Left: Hugh O’Neill; Fiona Duffy Far left: Newly elected DBSA President Robert Ryan

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Winter 2017 dsba.ie Photography: Michael Finn

50+ Years in Practice

A lunch was hosted by the DSBA in honour of Dublin solicitors who are 50 years (or more) in practice on 17th October 2017 at the RDS, Ballsbridge. There was a large attendance to mark this very special annual occasion.

Left: Aine Hynes, President DSBA; Laurence Branigan; Joan Doran Far left: Ailin Doyle; Mary Tighe; Maire Cunneen

Right: Donal McAuliffe; Derek Burke; Brendan O’Maoileoin Far right: John Temple Lang; Michael Dickson

Left: Ruadhan Killeen; Eileen Bourke; Vivian Matthews Far left: Kenneth Clear; John Hooper

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DSBA Probate and Tax Seminar

The DSBA Probate and Tax committee hosted a CPD seminar on 9th October 2017. The seminar was entitled “The Devil is in the Detail” and dealt with the extraction of the grant; acting for the personal representative in the sale/transfer of assets; protecting the LPR and tax obligations arising. The speakers were Margaret Finlay, Finlay & Co; Caitriona Gahan, Bohan Solicitors and Brian Spierin, SC.

Photography: Michael Finn

Left to right: Darach Connolly, Darach Connolly and Christina Sauer-Dechant, Charltons Solicitors

Left: Joe Kelly, Cannons Solicitors and Lorraine McCoy, Patrick J Carrolan & Co Far left: Jill Lee, Lee Solicitors and Edel Murray, Creavin & Co

Right: Maria Hennessy, Moroney & Co Solicitors and Linda O’Callaghan, Plunkett Kirwan & Co Far right: Mark Hennelly, David Walley & Co and Darragh McEvoy, Fitzpatrick Gallagher McEvoy Solicitors

Left: Paddy Rodgers, Nathaniel Lacy & Partners and Martin Kennedy, Martin A. Kennedy & Co Far left: Mary Cowhey, Mary Cowhey & Co and Elaine Morrow, Shea Cullen Solicitors

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Winter 2017 dsba.ie Photography: Michael Finn

DSBA Litigation Seminar

The DSBA Litigation Committee hosted a CPD seminar on 8th November 2017. The seminar was entitled “Medical Negligence a Practical Guide.” The speakers were Professor Michael Geary (Rotunda Hospital); Elva Breen (occupational therapist); Catherine Conway (paediatric occupational therapist) and David Nolan, SC. Former President of the High Court, Nicholas Kearns chaired the seminar. Above left to right: Speakers David Nolan, SC; Elva Breen; Jenny Foley; Mr Justice Nicholas Kearns; Catherine Conway; Professor Michael Geary; Avril Scally; Eamon Carroll Right: Jenny Colfer, State Claims Agency; Caitriona O’Brien, Hayes Solicitors; Alice Lanigan, State Claims Agency. Far right: Neasa Ryan, State Claims Agency; Caroline Fitzpatrick, Mason Hayes & Curran; Katie McAuliffe, Mason Hayes & Curran

Left: Ruth Finnerty and Fergal Dennehy, both Ronan Daly Jermyn Far left: Patrice O’Keeffe, Comyn Kelleher Tobin; Olwen O’Callaghan, State Claims Agency

Right: Aisling Hourigan, Daniel Spring & Co; Geraldine Shanley, Daniel Spring & Co; Jennifer O’Riada, O’Riada Solicitors Far right: Cliona Kenny, State Claims Agency; Debbie Moore, Comyn Kelleher Tobin

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DSBA Practice Management Seminar

The DSBA Practice Management Committee hosted a CPD seminar on 20th November 2017. The seminar was entitled “Mandatory Management and Professional Development Skills 2017”. The speakers were Brendan Dillon, Dillon Solicitors; John Brennan, O’Leary Insurance and Tony Watson, Law Society Regulation.

Photography: Michael Finn

Left to right: Speakers Brendan Dillon, Niall Cawley, Brian O’Meara, Tony Watson, John Hussey, John Hussey & Company

Left: Joe Kelly, Cannons; James Finnegan, Sheehan & Co Far left: Brendan Hyland, B Hyland & Co; Sean Twomey, Eugene F Collins; Pearse Mehigan, Pearse Mehigan & Co

Right: John Flynn, Murray Flynn Maguire; Michael O’Shea, Michael O’Shea & Co Far right: Lorna Shannon, Gaffney Halligan & Co; Niall Corr, Niall Corr & Company Solicitors; Nora Morris, James A Connolly & Co

Far left: Máire Cunneen, O’Malley Cunneen McCarthy; Stephanie McCarthy, O’Malley Cuneen McCarthy. Left: Margaret McGinley, McGinley & Co; Shenna Townley, Townley Kingston; Mairéad Leyne, Mairéad Leyne Solicitors

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Winter 2017 dsba.ie Photography: Michael Finn

Left to right: Speakers Gareth Henry; Deirdre O’Donohue, BL; Caoimhe Nic Dhomhnaill; Ruth O’Dea; Judge Colin Daly

DSBA Family Law Seminar

The DSBA Family Law and Minors Committee hosted a CPD seminar on 1st December 2017. The seminar was entitled “Domestic Violence - Practice and Procedure: Essential Legal Guidance for Solicitors”. The speakers were Caoimhe Nic Dhomhnaill (clinical psychologist); Gareth Henry, DPP; Deirdre O’Donohue, BL and Ruth O’Dea (Women’s Aid). The seminar was chaired by Judge Colin Daly of the District Court.

Right: Gareth Henry, DPP; Karen Wilson, DPP Far right: Diego Gallagher, DSBA; Judge Colin Daly

Left: Malachy Steenson, Canning Landy; Tom Conlon, DPP Far left: Michelle Dunne, Walls & Toomey; Barra O’Cochlain, John Glynn & Co

Right: Michelle Sheerin, Gary Irwin; Matthew DeCourcy, KOD Lyons Far right: Patricia Donnelly, Charltons; Noreen Maguire, Muldoons

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Closing Argument Stuart Gilhooly

Stuart Gilhooly is a former President of the Law Society and DSBA. He is a partner at HJ Ward Solicitors, Harold’s Cross and former editor of the Parchment. He writes this column in a personal capacity

Keeping Good Women Down

T

his column was at an event last year to promote the Calcutta Run. It was attended by a wide cross section of the legal establishment in the Capital and was essentially a rallying call for support with associated photo opportunities. At one stage, some leading lawyers and other senior event organisers gathered for a group portrait. It didn’t take long to note that the gender balance wasn’t just bad, it was non-existent. While this isn’t especially unusual even in 2017, it was galling that the event was taking place on International Women’s day. The photo has never seen the light of day. We have become the first country in the world to have a female majority solicitors’ profession. Bear in mind, we started from a low base so to reach that level so quickly, the ratio of women to men entering the profession over the last 20 years has to be considerably higher than the current 52%-48% on the roll. Indeed, this column’s experience from attending Parchment ceremonies for over 15 years is that the approximate ratio is closer to 2-1. A quick glance at the Law Society ruling council makes for depressing reading. The Law Society currently has approximately

a one third representation. In the last 28 years, in other words since women began to become the majority gender qualifying each year, the Law Society has had just two women presidents. The easy argument to make is that this all takes time and we will see progression as the proportion of women to men gets larger. But surely, we would have seen more by now. The glass ceiling was once a big issue and it would be naïve to think that it’s no longer a factor at all but with many of the larger firms having a very reasonable proportion of female partners, it would seem that choice, or indeed lack of choice, is playing a much more significant role. Simple mathematics tells us that women must either be progressing to a certain stage and not going further or leaving the profession. While the latter remains a factor, for all sorts of reasons, family being chief among them, the more likely explanation is a re-evaluation of priorities. The proliferation of in-house roles has changed the landscape. In-house takes on many different guises and, of course, both men and women take up such positions on a regular basis but at a recent seminar attended by this column run by the Law

In the last 28 years, in other words since women began to become the majority gender qualifying each year, the Law Society has had just two women presidents

Society in-house committee, the attendance was 75% female. This isn’t a scientific method of calculating gender balance in the in-house sector but as a finger-in-the-air stab, it’s probably not a million miles off. The reality is that the solicitors’ profession requires huge sacrifices, no matter what sector you work for. However, long hours, billing pressures, isolation, increasing client demands and problems getting paid are just some of the issues facing either the traditional large or small firm. While working in-house can also require long hours, extreme stress and big industry problems that other solicitors don’t face, it can often be a better choice if, for instance, a young family is your priority. And that applies to both genders. There is a reason why more women qualify every year. It’s because they are, in general, smarter than men. If we are not bringing them to the top of our profession, we are losing out. It’s not about quotas or gender percentage rules (though unfortunately they seem necessary), it is incentivisation, understanding and inventiveness. Imagine a picture on International Men’s day when all the leading lawyers are women. P

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